OBITUARY
AFFIRMATIVE-ACTION DIVERSITY

When “Affirmative-Action Diversity” dies,
Ask not for whom the bell tolls…
It tolls for all of us.
(John Donne)

 

The Cases…

On October 31, 2022, the U.S. Supreme Court heard oral argument in the cases of…

(1) Students for Fair Admissions vs Harvard,

and

(2) Students for Fair Admissions vs the University of North Carolina.

These cases now await the Supreme Court’s decision and their written opinion… to be released this year (2023).

The Issue…

Is “affirmative-action diversity” in admissions to Public Universities and Colleges constitutional ??? More precisely… can Public University and College Admission Boards (in their goal to create “diverse” student bodies) continue to take an applicant’s “race” into consideration as one admission factor (amongst numerous other admission factors) ???

The Existing Law…

As a thumbnail sketch, I generally use two prior University of Michigan cases for discussion of existing constitutional law re “affirmative-action diversity” in admissions (to Public Universities and Colleges).

1. Grantz vs Bollinger (2003… U. of M. Undergrad)

The U.S. Supreme Court held (6 to 3)… that  giving (a head-start) 10 points (on a 100 point admission scale) to Blacks, Hispanics and Native Americans simply because they are minorities is an unconstitutional preference (based on race).

2. Grutter vs Bollinger (2003… U. of M. Law School)

The very same Supreme Court held (5 to 4)…  that it was constitutionally okay for Public Universities and Colleges to use “race” (not points, not preferences nor set asides), but “race” as one factor amongst numerous, other admission factors… to provide a “diverse” student body.

In her swing vote, Justice Sandra Day O’Connor (joining the liberal Justices) specifically limited her swing vote to a shelf life of 25 years… after which she said the Constitution would then become colorblind (by 2028). As a voice of one, “Sandy Baby” (as NFL running back, John Riggins once called her at a Presidential White House reception for the Super Bowl Champions)… repeat, Justice O’Connor (as a voice of one) felt that “affirmative-action diversity” would no longer be necessary in America by 2028.

But, I am quick to point out that Justice O’Connor’s suggestion (that her swing vote would last only another 25 years) was not adopted by (nor binding upon) the four liberal Justices she voted with. Justice O’Connor died in 2009 without witnessing the 2020, slow, tortuous murder of a Black man, George Floyd, by a white Police Officer, Derek Chauvin. I often wonder what effect the torturous, last moments of George Floyd’s life and death would have had on Justice O’Connor’s view that White America would be racially colorblind by 2028.

Is Considering “Race” Affirmative Action ???

Is merely considering “race” as but one “admission” factor (amongst numerous other admission factors) even affirmative action to begin with ??? The use of “race” in this “one factor amongst many” context is motivated by the common need of Universities and Colleges to create “diversity” as a means of providing… the best education possible for all students, of all color and of all national origin.

Given this across the board, equal benefit of “diversity” for all students, I (as a voice of one) fail to see how considering “race” in this (one factor amongst many other factors) context can really be defined as affirmative action. Considering ”race” in this context… benefits both the quality of education in general and the specific education of each and every college student in particular. The minority student whose “race” is being considered (as but a single factor amongst many) may benefit, but that minority student is merely a “conduit for diversity” and is, at most… an incidental beneficiary.

Therefore, I answer my own question. The use of “race” (as one “admission” factor amongst numerous other factors) is not affirmative action. And to those who still insist it is affirmative action, I say “so what.” Considering race in this context, should still be constitutionally permissible because… considering race (as one factor amongst many) is minimalist “race consciousness” for maximalist diversity benefit of all students, minority and non-minority.

The bottom line. Whether considering “race” (as but one factor amongst many admission factors) is affirmative action or not… the 2003 Grutter case (University of Michigan Law School), got it right when it balanced both the interests of minority students and non-minority students alike to have a better education through “diversity” of race, background, and views. State differently, considering “race” (as simply one admission factor amongst many) is clearly a mortal attempt at “Justice for All” in an imperfect world… an attempt that balances the equal rights of individual applicants to gain admission against the equal rights of student bodies to have a better education through “diversity.” The alternative (not considering race at all) may be a plus for certain White students seeking admission, but it’s also a minus for entire student bodies… because, as I say, not considering race undermines and diminishes the robust “diversity” that is so crucially important for a better education for all… minority and non-minority students.

Indispensable Role of “Diversity”

Even though “affirmative-action diversity” is crucial for a high-quality education, the present, U.S. Supreme Court will ignore the wishes of Public Universities and Colleges across America… who correctly say (in my judgment), “diverse” student bodies provide a diverse “Marketplace of Ideas” that education truly demands and that students truly need… to be truly “educated” men and women.

I think it hard to argue against the overwhelming benefit of “diversity” in education. I think it hard to argue against the proposition that a true “education” grows out of a broad melting pot, of differing philosophies, ideas, thoughts, concepts, theories, and opinions. Education without the “diversity” of seeing, hearing, discussing, and being open to the differing views of other students, of other races, religions, creeds, and socioeconomic backgrounds is… nothing more than a pretend education, a counterfeit education, an education that lacks range, scope, depth, width and wisdom, a single dimension education in a multi-dimensional world, and a flat two-dimensional rectangle in a world of three-dimensional cubism.

Politically, I wonder if the “Nationalist” slogan, Make America Great Again is simply a narrative that takes our great Nation backwards to the “good old days” of no diversity in education, when the “good old boys” of White skin, Christian morality… ran everything with a patriarchal fist of “I know what’s best for you, so do as I tell you.”

As a White Detroiter and son of lower, middle-class parents (an 8th grade educated, Irish Mother, a 9th grade educated “Bookie” Father), and as a younger Brother of my man Marty, who fought the cops to get into prison, and then fought for the Heavyweight Championship of Jackson Prison… I know that I brought a much more enhanced “Champion of the Underdog” perspective to my High School, to my College and to my Law School classroom than many of my (more well to do and less dysfunctional) classmates did. Ditto for those occasional Blacks and the few women who serendipitously found their way into University and College classrooms of the 1950s and early 1960s. I also know that… with 100% White kids in my high school, with 99% White kids in my undergraduate school, and with only one Black and two women in my Law School class of 77 students… all of us White kids of my generation missed out on the “diversity” we should have been exposed to during our formal education. My loss. Our loss. A loss which many of my former White classmates still fail to fully understand… all these decades later.

My Generation (for the most part), belatedly and eventually, got the “mental concept” of diversity… at least to a limited degree. But, truly accepting others who are different than us in tribe, race, color, creed, and religious ideation is more than a mental decision. The mental decision i.e. the cognitive commitment to truly “accept” the diversity of the world is merely the starting point on the diversity journey, a starting point that will, eventually, take hold emotionally over the decades…  as our humanity finally cries out in Jesus, Gandhi, Mandela, Rosa Parks and Martin Luther King fashion, “I must not only begrudgingly accept the differences of others as an intellectual choice, but I must, eventually, over the decades of life, begin to love the men, women and children of diversity… who, just like me, are the Children of God.”

The diversity journey, therefore, starts with an intellectual decision, but, in the end, it must embrace an emotional commitment to love, accept and celebrate the diversity of others… as we, finally, realize that all of us across the globe are…

* Children of God, first, and a member of some religious organization, second,

and

* Citizens of the World, first, and patriotic inhabitants of some postage stamp of the Earth’s terra firma, second.

Now, belatedly, my generation of War Babies and Baby Boomers of the 1940s and 1950s sees and cognitively accepts diversity. But, for the most part, my generation is too late to the game of diversity to truly accept and emotionally celebrate the differences of diversity. Would that we would have been exposed to “diversity” all along… throughout our early, formative years. My generation’s White Supremacy (state of mind) started us off on the wrong foot, and diversity was nowhere around to save us when we needed to be saved.

But, I was one of the lucky ones of my generation. Thanks to the compassion of my (non, White Supremacist) parents, thanks to my serendipitous opportunity to attend a Jesuit Law School, and thanks to my fortuitous, early career as a Trial Lawyer in Detroit’s Recorders Court, prosecuting and defending Blacks and Hispanics, and rubbing up against some outstanding Jewish and Black lawyers and Judges… my diversity ship was righted during the last hours of my youth.

Many of my Detroit contemporaries were not as lucky. Oh, they lived full, productive, and important lives, but they still carry the scars of their “non-diversity” upbringing, some still struggling with end-stage White Supremacy. Too many of my generation are just  content to live out their lives exchanging high fives and chest bumps while saluting their like-minded fellows as “True Patriots”… un-questionably falling in line to worship (as they say), “the one and only true religion God recognizes, Christianity,” reflexively reciting the Pledge of Allegiance for breakfast, saluting QAnon for lunch, attending MAGA rallies for dinner  at air plane hangars in Washtenaw County, then hurrying home to catch Fox Entertainment… with nary a thought for the rest the world’s inhabitants. A little harsh ??? Perhaps, but it facilitates what I am trying to drive home. Too many of my generation will die as victims of their narrow-minded, Nationalistic ideation… without ever truly understanding or buying into the richness of our diverse world.

Now, thankfully, (into and onto the 21st Century) things have changed. “Diversity” is taking hold and upping the quality of education and understanding of others who are different. Thankfully, the students of 21st Century America don’t have to live in the White Supremacy “ignorance” of my past… sheltered (as my generation was) from the Black perspective, the Latino perspective, the Asian perspective, the Native American perspective, the Jewish perspective, the Muslim perspective and from the views of women. For that “sheltering” and the “ignorance” it perpetuated is, indeed… the hallmark of an uneducated or undereducated man or woman.

Upcoming Death Knell for Affirmative-Action Diversity

Where will “affirmative-action diversity” end up this year (2023) when the present, U.S. Supreme Court majority writes their opinion in the pending cases of Harvard and the University of North Carolina ??? The short answer, DOA… as in “Dead on Arrival.” My “53 years a lawyer” tells me that “affirmative-action diversity” (in Public Universities and Colleges in America) will be “dead on arrival”… as soon as the present majority  of U.S. Supreme Court Justices issue their written opinion (sometime in 2023).

And, no… despite what the present majority of Supreme Court Justices tell us, they are not merely Umpires calling “balls and strikes.” The present majority of the Supreme Court are Catholic, Cultural Warriors who wish to overrule Supreme Court precedent so they can remake the American Justice system according to their own theocratic, Christian vision of what the law should be. You question my criticism of the present Supreme Court majority who deceive America by calling themselves Umpires ??? Then, I ask you. What is the strike zone ???… for the very “subjective,” constitutional phrases, Due Process of Law and Equal Protection of Law… now pending interpretation in “affirmative-action diversity” cases presently before the Supreme Court ???

Extrapolating further, what is the strike zone for other very subjective, constitutional phrases…

* Cruel and Unusual Punishment,
* Fair Trial,
* Probable Cause,
* Unreasonable Searches and Seizures,
* Rights, Privileges and Immunities,
* Prohibition of “Excessive” bail,
* etc. ???

Is that “one strike zone fits all” or is that one strike zone per each subjective, constitutional phrase ???

Hey, you right wing Supreme Court Justices. Don’t B.S. me, and don’t gaslight America by telling us that you are just Umpires, calling balls and strikes… on ill-defined, illusory and subjective phrases of law. You are not Umpires. Umpires have a well-defined strike zone. If there is even a strike zone for Judges and Justices, it is, at best… a subjective strike zone that allows Justices to interpret the Constitution in any way they want, and then find “false cover” behind the false phrase, “just Umpires.” As my Bookie Father would say about a sure bet, take that to the bank.

Fifty-three years a lawyer tells me these right wing, Cultural Warrior, self-proclaimed, “balls and strikes” Umpire Justices have (whether they recognize it or not)… a biased subjective, Christian strike zone that drives their subjective Christian agenda as they subjectively decide whether “affirmative-action diversity” violates their subjective view of the subjective phrases, “Due Process of Law” and “Equal Protection of Law.”

My own view, as a left wing, back row, Jesuit Catholic, is also… undeniably, humanly “subjective.” But I always (always) strive to offset my own human “subjectivity” (aka confirmation bias) with “intellectual honesty” via documented facts, history, logic, deductive reasoning, Jesuit-instilled critical analysis, and by adhering to the doctrine of Separation of Church and State. No one in America (repeat “no one”) should ever be allowed force their “unprovable” religious beliefs on others, no matter how deeply and religiously held those beliefs may be. That doctrine of Separation of Church and State protects America from a take-over of government by any theocracy… Christian, Jew, Muslim, Seik, Al-Qaida, Taliban, ISIS, etc.

No… America is not a Christian Nation. The 1st Amendment’s, non-establishment of religion clause demands (by the power of the American Constitution) that no religion ever take over the seat of government, and start punishing us, shunning us, nor discriminating against us because we do not share the “unprovable” religious beliefs that others hold so near and dear to their religious hearts.… ever.

Meritocracy ??? 

Is it time ??? Is it really time to embrace what others call a strict, “objective” meritocracy ??? If so, how do you measure it ??? Does strict objective meritocracy even exist ??? Is it really time to measure the performance of all Americans on the basis of some strict meritocracy… at the cost of losing a much needed and robust “diversity” of people, places, things and ideas in our Universities and Colleges ??? Is it really time to get rid of the minimalist, race conscious, (one-factor amongst many factors) affirmative action… at the cost of losing a much needed and robust “diversity” of people, places, things and ideas ??? Maybe, so. Maybe, no. Or, maybe… reasonable minds can reasonably differ on the subject.

Putting the old boy’s network of “nepotism” aside for the moment, all of us must still recognize the reality of how “subjective” (in the eye of the beholder) the measurement of meritocracy can be in all situations where there are no reliable “batting averages” to measure one performer against another. My four plus decade’s experience as a Trial Lawyer tells that the measurement or evaluation of meritocracy…

* Is “in the subjective eye of the each subjective beholder”… as Shakespeare might be wont to say.

* Is governed by Philosopher, Goethe’s inevitable truth that… “We tend to find what we were looking for.”

* Is governed by song writer, Paul Simon’s, inevitable truth that… “All lies in jest ’til a man hears what he wants to hear, and disregards the rest” (song, The Boxer).

* Is colored by a “confirmation bias” that still haunts all of us humans, especially those who grow up in religious environments that “indoctrinate” us from childhood on, to simply “believe”… without hesitation, without question, and without analysis, the “unprovable” dogma of various religions… even complimenting us as “true followers” of the Faith and “true believers” of the Dogma because we gave up our God-given, free will to think for ourselves and, along with it, our logic, deductive reasoning and critical analysis skill that set us humans apart from the rest of God’s creatures.

Color Blind Constitution Leads the Way…
 (Or does it ???)

In general-abstract terms, it is difficult to argue against the proposition that the American Constitution (and American Society) should be color blind… like Lady Justice, the blindfolded protector of the Rule of Law, who sees neither White, Black, Brown, Red, Yellow, nor any other color. But, why then was it so difficult in real time (back in the day) to argue against enslaving Blacks in American because of the color of their skin ???  And, as we all know, that’s exactly what the White man did for 250 years in the Americas from 1619 to 1865… until the adoption of the 13th Amendment, abolishing Slavery (in 1865… during the Civil War). All that 250 years of theft of Black humanity on Lady Justices’ supposed, colorblind watch.

Now, 150 years after the slaves were freed, the U.S. Supreme Court, right wing majority is now poised to resurrect that very “color blind” argument, and use it against Blacks and Public Universities and Colleges in the Court’s upcoming decision… a decision that will deep six “affirmative-action diversity” (in the pending Harvard and the University of North Carolina cases)… and, along with it, the “oh so necessary” vibrancy of “diversity” in education.

The smart money, which prides itself in seeing “the handwriting on the wall,” and the images in a crystal ball, is giving favorable odds that the present, Supreme Court majority will, indeed, bury affirmative-action in the trash bin of history, and, along with it, the robust “diversity” that… like a seed takes hold and grows when Public Universities and Colleges are allowed to consider “race” (as but a single, de minimus admission factor, amongst numerous other admission factors).

And, in burying affirmative action in the trash bin of history, and in mortally wounding a much needed “diversity” in Public education, today’s 2023, conservative majority of the United States Supreme Court will quote the long-ago, 1896 “dissent” of Justice John Marshall Harlan from the 126-year-old case of Plessy vs Ferguson. In that 1896 case (decided only 30 years after Black slaves were freed), the Supreme Court via an overwhelming majority of all White males upheld Jim Crow’s “separate but equal” legal doctrine that discriminated against the civil rights of Blacks… with Justice Harlan’s lone voice of dissent. In that lone voice of dissent from 126 years ago, Justice Harlan urged his fellow Justices to check their inbred White Supremacy at the Courtroom door and do the right thing— throw out the White man’s Jim Crow, discriminatory, legal doctrine of “separate, but equal,” and protect the recently-freed Black slaves from the White man’s reassignment of Blacks. Reassigned (as Blacks were) from recently freed slaves to second class citizens.

In his lone dissent against the injustice of Jim Crow, “separate but equal” laws, Justice Harlan wrote, “Our Constitution is colorblind, and neither knows nor tolerates classes, among citizens”… words Justice Harlan wrote in a losing attempt to protect the civil rights of the Negro. Now, this year (2023), the present, Supreme Court majority will recycle, those 126-year-old words, but, this time, for an entirely different purpose. Not to protect the civil rights of Blacks, as Justice Harlan was doing, but rather… to cut back on both “diversity” and the educational opportunities of Blacks.

No doubt, Justice Harlan said what he said in 1896 (in the Plessy case) as a “lone, dissenting voice” trying to protect the civil rights of the Negro from second class citizenship under Jim Crow’s “separate, but equal” laws. And likewise, no doubt Justice Harlan would roll over in his grave to now see his 126-year-old words twisted and bastardized by the present, majority of Supreme Court Justices.  But, the “context” of Justice Harlan’s 1896 quote matters not to the present majority of “result oriented,” Federalist Society, Supreme Court Justices of today (2023)… as those Justices set out to destroy what they “subjectively” see as impermissible, affirmative action when Blacks dare speak out about their own, undeniable racial history… when applying for admission to Public Universities and Colleges.

Although it’s hard to (“theoretically”) argue against a “color blind” Constitution (in general terms), it is equally true that the White man in America has spent the past 400 years and counting (1619 to 2022) positing their White, Christian advantage on their own “subjective,” non-color blind version of the Constitution… a Constitution that “oh so many times” favored the White man legally, socially and economically at the expense of the Black man… despite a 1776 Declaration of Independence that proclaims the “self-evident truth” that “All men are created equal.”

As the White man has said to the Black man in America over the last 400 years…

(1) You Negros are different because of your Black skin color, and your 250-year history as slaves (1619-1865)   providing free, back-breaking, Black labor at the whim of the White Master… with the Black slaves in turn, passing on their slave status to their heirs at the time of death. Have a good life kid, and don’t forget to pass on your slave status to my grandchildren and to my great grandchildren. Talk about being born into “hopelessness.”

(2) We Whites have (by and, mostly, large) used the Constitution as a sword against you Blacks far more than a protective shield… a sword historically used to deny you Blacks your basic human rights of self-determination to the Life, Liberty, and the Pursuit of Happiness you would otherwise choose.

(3) And, you Negros don’t forget the price paid trying to keep you protected from “real world” with free, room, board, tuition and books down on the old plantation, and don’t forget the sacrifice of us Southern Whites who “in-civilly” fought a Civil War that killed 700,000 to 800,000 Americans just so we seditious Southerners could maintain the status quo of your slavery as well as our extrajudicial-lynching control over you.

The tip of the iceberg ??? Exaggeration ??? Critical Race Theory ??? History ??? Truth ??? Fiction ??? While you ponder your answers, consider yet another the tip of iceberg…

* 250 years of Black slavery in the Americas (1619-1865).

* After slavery was abolished in 1865, lynching continued in full force and effect… Capital Punishment without trial, and without accountability for the White lynchers. As Bob Dylan sang, “They’re selling postcards of the hanging… and the circus is in town.” (Desolation Row).

* Even after slavery ended, Jim Crow’s “separate but equal” doctrine denying civil rights and full rights of citizenship to Blacks… was upheld by the great, White Christian Justices in Plessy vs Ferguson, including forbidding Blacks the right to send their children to the White man’s Public Schools.

* 56 years after slavery ended, a White mob in Tulsa Oklahoma burned down 35 square blocks of Black neighborhoods leaving 10,000 Blacks homeless.

* Almost 100 years after slavery ended, two Southern whites, who admitted they tortured and murdered Emmet Till in the 1950s (over nothing)… were acquitted.

* 100 years after slavery ended, Medgar Evers’ was assassinated by a White Supremacist in the 1960s.

* 100 years after slavery ended, John Lewis and the Pettus Bridge protestors were savagely and unconstitutionally beaten by White cops in the 1960s.

* 100 years after slavery ended, Martin Luther King was assassinated by a White Supremacist in 1968.

* 155 years after slavery ended, George Floyd was murdered by a White Supremacist Cop in 2020.

* All the while, for the last 150 years (from the freeing of the slaves in 1865 to the present in 2022)… Institutional discrimination artificially kept blacks at a socioeconomic disadvantage in employment opportunities, meaningful wages, home ownership (due to redlining of mortgages, restrictive covenants in deeds, shutting out Black Americans from White neighborhoods, etc.) taking away the Black American dream… as well as the opportunity for wealth creation and home equity accumulation for generations of Blacks.

Again, the mere the tip of the iceberg… an iceberg that froze Blacks out legally, socially, and financially from the American dream… generation after generation, after generation.

And, It’s Still Going On

Justice Ketanji Brown-Jackson (first Black woman Justice on the U.S. Supreme Court… 150 years after slavery was abolished)… repeat Justice Ketanji Brown-Jackson’s questions during the Supreme Court’s oral arguments in the pending cases of Harvard and the University of North Carolina, showed the absolute necessity of having “affirmative-action diversity” in Public Universities and Colleges.

Why necessary ??? Because, as Supreme Court Justice, Ketanji Brown-Jackson pointed out during oral argument (in the pending cases of Harvard and University of North Carolina)… without affirmative-action diversity, Whites have a trump card advantage in Public University and College admissions. That trump-card advantage ??? Whites can tell Public University and College admission Boards the story of their family’s White legacy while… Blacks cannot tell the story of their family’s Black legacy. Why ??? Because, well because… the legacy of Blacks and Black families is inexorably entwined with “race,” and, therefore, the present majority of the U.S. Supreme Court will soon issue a ruling that will, most likely, prohibit the story of Black legacies from being told to and heard by University and College Admission Boards, even as, but a single factor (amongst numerous other admission factors).

To make this point clear, I quote Justice Brown-Jackson’s questions during the Supreme Court’s oral argument… questions directed to the lawyer seeking to do away with “affirmative-action diversity” (in the pending cases of Harvard and the University of North Carolina).

QUOTING JUSTICE BROWN-JACKSON: 
What I’m worried about is that the rule that you’re advocating, that in the context of a holistic review process, a university can take into account and value all of the other background and personal characteristics of other applicants, but they can’t value race, what I’m worried about is that that seems to me to have the potential of causing more of an equal protection problem than it’s actually solving.

And the reason why I get to that possible conclusion is thinking about two applicants who would like to have their family backgrounds credited in this applications process, and I’m hoping to get your reaction to this hypothetical.

The first applicant says:
I’m from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it’s important to me that I get to attend this university. I want to honor my family’s legacy by going to this school.

The second applicant says,
I’m from North Carolina, my family has been in this area for generations, since before the Civil War, but they were slaves, and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family — family background, it’s important to me to attend this university. I want to honor my family legacy by going to this school.
Now, as I understand your no-race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count.

The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn’t be able to because his story is in many ways bound up with his race and with the race of his ancestors.

So I want to know, based on how your rule would likely play out in scenarios like that, why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored, just like the other person had their personal background family story honored, why is telling him no not an equal protection violation?

MR. STRAWBRIDGE: 
Well, I think — I think — I think because, if — if it is the racial aspect of the application, then that’s — equal protection requires that — that people of all races be treated equally…. Now, certainly, UNC shouldn’t give a — a legacy benefit if they don’t want to give a legacy benefit. There’s no obligation they do that.

JUSTICE BROWN-JACKSON: 
No, but you —

MR. STRAWBRIDGE: 
And, of course, a first generation college —

JUSTICE BROWN-JACKSON: 
I’m sorry, but you said — you said it was okay if they give him a legacy benefit. And what I’m saying is that in almost exactly the same set of circumstances, a student or an applicant who is African American and who would like to have the fact that he’s been in North Carolina for generations through his family and that they’ve never had a chance to go to this school honored and considered, and it’s bound up with his race, you say, I think, that he’s not allowed to say that and that the university is not allowed to take that into account. And because it relates to race, precisely because it relates to race, I think you might have an equal protection problem in saying that he can’t get credit for that when someone else can.

MR. STRAWBRIDGE: 
Well, for purposes of the hypothetical, I am assuming that the only significant factor in that story happens to be the fact of the race of the applicant and that the race was previously barred from attending UNC. Obviously, nothing stops UNC from honoring those who have overcome slavery or recognizing its, its—its past contribution to racial segregation.

[aka “make-weight” arguments and a stream of words that tell no story, and have meaning… Blah, Blah, Blahski, have you any wool ??? Yes sir, yes sir, three bags full]

END QUOTE

As the first Black, United States Supreme Court Justice, Thurgood Marshall (it took over 100 years after slavery was abolished to get a Black on the Supreme Court)… repeat, as Justice Thurgood Marshall once pointed out,

Ah America,
The greatest Country that never was
But, hopefully, always will be.

As I previously pointed out, “affirmative-action diversity” in America is already “dead on arrival”… and we are just waiting for the proverbial Fat Lady to sing the Supreme Court’s written opinion that she is now rehearsing for a 2023 swan song,

Affirmative-Action Diversity
Say it ain’t so
Now big No, No.

Or, as Bob Dylan would say,

You don’t need a weatherman
To know which way the wind blows.

And, you don’t even have to be a lawyer to know which way the present U.S. Supreme Court majority blows.

How will the Supreme Court End “Affirmative Action… Diversity” ???

The Supreme Court, right wing, Cultural Warrior, Catholic Justices are poised, at this very moment, to tell Public Universities and Colleges that it is unconstitutional to use “race” as but a single factor amongst numerous other admission factors (even at the expense of losing or substantially undermining “diversity”). And here’s how those Supreme Court Justices will do it.

(1) By repeating Justice Sandra Day O’Connor’s somewhat strange swing vote of 2003 with a Statute of Limitations on “affirmative-action diversity” to expire in 2028 (Grutter vs Bollinger, 2003… U. of M. Law School),

(2) By bastardizing Justice Harlan’s “colorblind” quote in the case of Plessy vs Ferguson from 125 years ago.

Quoting Javier Bardem’s character in No Country for Old Men“You know how this is going to end.” In fact, we all know how the pending cases of Harvard and University of North Carolina are going to end. The present, right wing majority of Supreme Court Justices are going to tell the rest of us that… “affirmative-action diversity” is dead on arrival for Blacks and other minorities, including, most likely, the right of Blacks to tell the story of their family’s “diverse” Black legacy.

Ironic eh ??? A Supreme Court decision that will be based on a supposed violation of a White applicant’s “Equal Protection of Law.” While, at the very same time (as Justice Brown-Jackson points out), the Supreme Court will deny Black applicants their “Equal Protection of Law”… by telling Blacks (Browns and Native Americans also) they will not be allowed to tell the story of their family’s legacy that the White man is allowed to tell. In short (and ironically) the Supreme Court majority will contradict itself by allowing Equal Protection of Law to protect the White legacy story, but not the Black legacy story. The violation of Equal Protection of Law for Blacks could not be clearer. The more things change, the more they remain the same.

Although Blacks, Browns and Native Americans will lose, the Asian woman in the Harvard case will, most likely, prevail (and, probably, correctly so) because the evidence at trial indicated Asians have been discriminated against in admissions to Harvard in favor of other skin colors (especially Whites)… which Harvard has already self-corrected since the lawsuit was filed against them (with a rise in 28% of Asians being admitted to Harvard). The Asian woman in the Harvard case has to win because… it is not only the right thing, but also, perhaps, because the right-wing Supreme Court majority needs some cover… to make sure their “public perception” doesn’t come off as overtly insensitive to the issue of race for non-Whites.

A Way Around ???

The problem today (2023), of course, is much more fundamentally about “poverty” than skin color… because 400 years of mistreatment of Blacks (and other “people of color”) by the White man’s supposed colorblind Constitution… has insured that the “people of color” are, and will remain, the poor ones. So, the battle to maintain as much “diversity” as possible in Public Universities and Colleges must now shift gears, and become the never-ending battle ground of fighting poverty in innovative ways…

(1) Through elimination of standardized testing. SATs and ACTs are now “optional” at Harvard and “eliminated” at the University of California. Eliminating standardizing testing gives the Children of Poverty a better shot at admissions (and Public Colleges and Universities a better shot at “diversity”).

(2) Through “early intervention” programs for the Children of Poverty… which can start by passing the Democrat-inspired laws assisting the poor with “Day Care” costs.

(3) Through early educational support programs for pre-college students, now specifically targeted in the State of Michigan to 7th graders through 12th graders by Wolverine Pathways… which was launched in 2016 to provide academic and personal support in targeted Michigan cities, including Detroit, Southfield, Ypsilanti, and Grand Rapids. See the Detroit News front page article of 1/10/2023 (UM to report gains in diversity)… the University of Michigan’s attempt to overcome Michigan’s Proposition 2, ballot initiative, banning the consideration of race in both college admissions and governmental projects. As a Father, former high school teacher, and based upon my own research, I personally feel that early educational support programs must start much earlier than the 7th grade. For relevant articles, see Scholarly articles for early intervention into households of poverty.

(4) By continuing to make an ample supply of scholarship money available to those whose families cannot afford the financial burden and the emotional stress associated with funding a college education.

(5) Etc. Let your “imagination” run free.

If America can truly put a dent in poverty, then maybe (just maybe) we can truly follow the true meaning of the 1896 words of Justice Harlan, “Our Constitution… neither knows, nor tolerates classes among citizens.”

Is the death knell for affirmative action a blessing in disguise. I doubt it. But, the next war may become the previous war of the 1960s, the War on Poverty. Now, that’s the economic fairness the Man in Sandals was talking about with his followers as he walked from Galilee to Jerusalem, “Many who are first will be last, and many who are last will be first.” (Matthew 19: 30)… unless of course you are a White man in America, in which case you will continue to be first and foremost.

But ??? Do the right wing, Supreme Court Catholics and the Evangelical Christians even know who the Man in Sandals is, let alone what he was talking about ??? Doubtful.

Fred Lauck
Copyrighted 2023
http://www.fredlauck.com

Special thanks to Tom Guyer, Esquire