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Targeting Affirmative Action, Supreme Court Votes Against Racist Practice

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By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

The United States Supreme Court has decided, at least when it comes to educational institutions, affirmative action is dead.  The case, Students for Fair Admissions, Inc. v. President and Fellows Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina, et al decided June 29, 2023, challenged the policy of using race as a factor in the admissions policies of U.S. institutions of higher learning.  The court voted 6-3 to kill affirmative action, which violates the Fourteenth Amendment’s equal protection clause, which calls for all persons to be treated equally under the law.

Justice Ketanji Brown Jackson was one of the dissenting voices in the decision, arguing that black newborns are beneficiaries from affirmative action because their lives are saved because black doctors give better care for black people than white doctors and without affirmative action there will be less black doctors in medicine.

She said, “It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication). For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”

The Wall Street Journal’s Ted Frank objected: “A moment’s thought should be enough to realize that this claim is wildly implausible. Imagine if 40% of black newborns died—thousands of dead infants every week. But even so, that’s a 60% survival rate, which is mathematically impossible to double. And the actual survival rate is over 99%.”

The claim is based on a 2020 study cited in a footnote, which Justice Jackson appears to have taken from an amicus brief by the Association of American Medical Colleges. However, Frank again objects that the study is not only “flawed” but does not make that claim:

“The study makes no such claims. It examines mortality rates in Florida newborns between 1992 and 2015 and shows a 0.13% to 0.2% improvement in survival rates for black newborns with black pediatricians (though no statistically significant improvement for black obstetricians).”

Frank says that “the AAMC brief either misunderstood the paper or invented the statistic.” He also notes that the study is flawed by relying on a linear regression given the small differential of 10 newborns a year. Instead, he claims that the study did the accepted logistic model analysis in such cases but put the results in an appendix:

“There, the most highly specified model still shows an improvement in black newborn survival. But if you know how to read the numbers—the authors don’t say it—it also shows black doctors with a statistically significant higher mortality rate for white newborns, and a higher mortality rate overall, all else being equal.”

Politico claims the decision “handcuffs universities,” and News-Break argued the decision “advances white supremacy.”  The latter story was removed from the internet shortly after it appeared.

The cases, brought by Students for Fair Admissions, a group representing Asian college applicants, argued that policies at two learning institutions, Harvard and the University of North Carolina, used race to give preferences to black and Hispanic students at the expense of white and Asian applicants.  The policies have long been held by the courts as being inherently suspicious and contrary to the ideal that all men and women are created equal.  But, until the recent ruling on the matter, the United States Supreme Court has not ruled on the practice.  As a result, colleges have used race in admissions claiming the method creates diversity on campus and that diversity yields certain educational benefits.  The supporters of affirmative action at learning institutions claim considering race is an important part of a “holistic” review of applications designed to create broad diversity of races, experiences, and viewpoints.

Students for Fair Admissions, in their filing, contend that the schools secretly do much more than that, putting a significant thumb on the scale in favor of some racial groups and against others.  Both schools give some minorities (primarily blacks and Hispanics) a “plus factor” in admissions. But the schools are careful to argue that these are only given out on an individualized basis.

The High Court, it turns out, agrees with those who have legally challenged the policies, recognizing that the schools racially balance their student bodies, and the violation of the Constitution needs to end.

Evidence shows that black and Hispanic students are admitted at much higher rates than white and Asian students with the same academic credentials.  If academic achievements were all that mattered, Asians would be admitted at a rate higher than their percentage of the total population.  The left considers that  “overrepresentation,” which then poses a large problem for universities who want to balance the racial composition of their student bodies with the racial composition of the population at large.

At oral argument, Justice Samuel Alito asked Harvard’s lawyer to explain why Asians are being admitted at numbers much lower than what they would be admitted otherwise.  Either Asians, as a group, do indeed have worse social skills (a factor that the colleges claim is also considered in admissions), or the school is discriminating against them. Harvard’s lawyer had no answer to that, simply insisting over and over again that there’s no discrimination against Asians at the elite school.

Justice Clarence Thomas drilled right to the heart of the issue by asking one of the lawyers defending the University of North Carolina, “If this case had been brought against a school in 1960 that was discriminating against black students on the basis that segregation yielded educational benefits, would we have deferred to that judgment?”

The lawyer had to concede that, of course, the court would not.

Apparently, racial justice only applies if it benefits certain groups approved as being in need of such policies by leftwing political narratives.

Justice Sonia Sotomayor loudly disagreed with Justice Thomas, arguing several times that past race-based policies caused the disparities that persist today and that, accordingly, we must turn those race-based policies around to fix those disparities.  In other words, it’s okay to use racism to combat racism.

Justice Ketanji Brown Jackson’s opinion only applied to the North Carolina case since she was recused from the Harvard case because of a past affiliation with the university.  Jackson argued that she simply doubted that there was any discrimination against Asians at all.  How could we conclude that, she wondered, when the admissions policy is holistic and considers more than 40 factors?

My question is why do we even apply labels in the first place, or consider any factors other than merit?  Is it not racist to consider a student to be anything other than a student?  The very labeling, and therefore the application of affirmative action policies that catagorizes a student as Asian or black or Hispanic or white, rather than simply a student, is racist…isn’t it?  True “equality” would be to judge each student based on merit, without any other factors imposed; especially those associated with race, ethnicity, or cultural background.  

How do such arbitrary labels, Alito wondered, produce any sort of actual diversity?  The schools’ defenders said that race informs who people are, at least to some extent.

Thomas asked the lawyers to clarify the link between racial diversity and these “educational benefits,” but no clear answer was forthcoming.

Since the change in policy thanks to the courts, universities now will begin using “diversity scores,” which is just a play with words that puts them in position to continue to use racist policies for admissions, but with a change in the language so that the policies are not so obviously racist.

The problem is, the new practices are still a violation.  The Fourteenth Amendment says that all persons must be treated with an “equal protection of the laws,” which means racism or privileged treatment may not be applied, even if the application is being done in the name of social justice.  

Political Pistachio Conservative News and Commentary


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