Tag Supreme Court

Court rejects race-based solution for race-based unfairness…hopes for the best

Pat Ryan Leave a comment

It’s no easy trick to find a way for a society to accept responsibility for the wrongs of the past that will satisfy everyone as being fair and effective.  In today’s America, we can’t even agree that “we” have such a responsibility, much less concur on how we can make a good faith effort to address the injustices suffered by the generations of Black Americans since the early 17th century.

Three generations ago America made an effort when Congress passed the Civil Rights Act and the Voting Rights Act.  But many felt more was needed, and as Jerome Karabel explains in today’s New York Times, “In a historic commencement address at Howard University on June 4, 1965, President Lyndon Johnson laid out the intellectual and moral basis for affirmative action.”

Speaking less than a year after the passage of the Civil Rights Act and two months before the passage of the Voting Rights Act, he invoked a metaphor that remains resonant 50 years later: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Affirmative action – race-based preferences in education, hiring and more – have been an attempt to correct historic race-based mistreatment.  Karabel says “After a brief honeymoon of public support, affirmative action was met with a powerful backlash, and the policy has been under attack ever since. Decades of lawsuits and legislation have chipped away at the use of racial preferences. And now, in a 6-to-3 decision, the Supreme Court has consigned them to the grave.”

From the Washington Post:

The Supreme Court on Thursday held that admissions programs at Harvard and the University of North Carolina that relied in part on racial considerations violate the Constitution’s guarantee of equal protection, a historic ruling that will force a dramatic change in how the nation’s private and public universities select their students.

The votes split along ideological grounds, with Chief Justice John G. Roberts Jr. writing for the conservative members in the majority, and the liberals dissenting. While the ruling involved race-conscious programs at Harvard and UNC, it will affect virtually every college and university in the United States.

“The student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote, joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Roberts said the admissions programs at Harvard and UNC “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

But he added that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

(snip)

In a lengthy dissent, Justice Sonia Sotomayor, the court’s lone Latina justice, wrote that it is “a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required” to reverse precedent [of previous court rulings supporting affirmative action].

Sotomayor, who has said her own life is an example of how affirmative action programs can work, spoke at length from the bench on Thursday, a tactic justices use to mark their profound disagreement with a decision.

“Equal educational opportunity is a prerequisite to achieving racial equality in our Nation,” she wrote, joined by [Justice Ketanji Brown] Jackson and Justice Elena Kagan.

“Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits,” Sotomayor’s dissent said. “In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

As Jackson put it, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat.  But deeming race irrelevant in law does not make it so in life.”

If it can find that race can’t be a factor in college admissions, it should only a matter of time before the court expands that reasoning to include private business, and to say that considerations of race – in the form of diversity, equity and inclusion initiatives – are also unconstitutional.

More from Karabel:

While race-conscious affirmative action is no longer permissible, it is worth noting that the Supreme Court ruling leaves intact many other forms of affirmative action — preferences for the children of alumni, preferences for the children of donors and preferences for student athletes, including for such boutique sports as sailing, fencing and squash. The consequences of this change are not entirely predictable, but based on what happened at the University of Michigan and the University of California, Berkeley, after they were barred from pursuing race-conscious admission policies, a sharp decline in Black and perhaps Hispanic enrollments at highly selective colleges and professional schools seems almost certain. To offset the loss, many colleges are likely to switch to a policy of affirmative action based on economic class. Such a policy would attenuate, although by no means eliminate, the racial impact of the Supreme Court’s ruling.

Affirmative action based on economic class is likely to enjoy broader public support than race-conscious affirmative action; according to a recent Washington Post poll, 62 percent of Americans believe that students from low-income families have an unfair disadvantage in getting into a good college. [David Brooks discusses this idea in the New York Times today.]  But affirmative action on its own, whether based on race or economic class, is far too limited a tool to realize the dream of the great civil rights movement of the 1960s for full racial equality. As we confront a world without race-conscious affirmative action, we would do well to remember the Rev. Dr. Martin Luther King Jr.’s admonition that to produce real equality, “the movement must address itself to the question of restructuring the whole of American society.”

I think most Americans agree that race should not matter, in college admissions or anything else.  (Not all agree, I’m afraid…and you know who you are.)  We wish it were true.  But as we all learned in our youth, wishing a thing doesn’t make it so.  Honest people will acknowledge that while we as a society have made great progress, race does still matter today.  Rulings such as this one seem aimed at making sure that some white Americans are shielded from any responsibility for righting the wrongs of the past.  Or of even acknowledging that there were past wrongs that need addressing.  That’s not a viable strategy for righting the wrongs.

(Jelani Cobb on “The End of Affirmative Action” in The New Yorker: “…almost from the outset, critics of the policy could be seen impatiently tapping their watches, questioning how long (white) society was meant to endure the patent unfairness of these racial considerations.”)

Oh, for a little straight talk now that spring is in the air

Pat Ryan 1 Comment

The political reaction to the death of Supreme Court Justice Antonin Scalia is the clearest evidence I’ve seen lately of the sclerotic thinking that passes for wisdom and strategy in American politics.  Not saying I’m surprised, mind you, just saying.

Don’t get me wrong: every vacancy on the Supreme Court of the the United States, ever, has been the occasion for political plotting and pontificating…that’s the nature of the beast.  Maybe there was more lip service paid in the past to observing “a decent interval” before going public, but we know that one reason the successful professional political players are successful is that they don’t let an opportunity to gain advantage go to waste.  In this case, Scalia’s body hadn’t made it home to Virginia before Senate Majority Leader Mitch McConnell announced his intention to block anyone nominated by President Obama in the hope that a Republican wins the presidency this November.

Why?  Because “The American people should have a voice in the selection of the next Supreme Court justice”?  Excuse me, Mr. Majority Leader and avowed Obstructionist-of-Obama-in-Chief, but that’s not the way it’s done and we all know it.

There isn’t—or shouldn’t be—any disagreement on the facts: the Constitution gives this president the responsibility to nominate a new justice in this case, not the next president; many of the same Republican senators now insisting that the process must be put on hold for the good of the nation had very different opinions when the question came up during the last few months of George W. Bush’s presidency.  (Yes, plenty of Democrats have more than a passing acquaintance with hypocrisy as a political tool, too, starting with Chuck Schumer on this same topic eight years ago; I’m sure some of you have more examples.)  Also true is that the Constitution gives responsibility to the Senate to approve or reject that nominee, with no timetable or deadline for doing so.

There’s no question that McConnell and the Republican majority have no legal requirement to approve President Obama’s nominee, or even to put the nomination to a vote.  They may make the political calculation that stonewalling for a year is the better path: bet on winning the White House and holding the Senate so they can have their pick of ultraconservative judges, versus running the risk of losing both and allowing the Democrats to choose another Douglas or Brennan (if one can be found).  I wish they would just say so, instead of going to the well for another round of the Obama Apocalypse that (inexplicably) plays so well with a certain portion of the electorate.  Andrew Prokop at Vox.com wrote them a first draft of such a speech:

Justice Scalia was a strong, solid conservative. And whoever Barack Obama nominates to replace him is certain to be well to his left — and will likely be very, very, very far to his left.

This would upset a balance of power in the Court that has existed for decades. Instead of a five-vote majority that is generally conservative, a Scalia replacement appointed by President Obama would allow a new majority bloc of five solid liberals to form. On issues affecting free enterprise, the sanctity of human life, and federal power, sweeping new liberal rulings could reshape law and precedent across America.

I believe this would be a disaster for the country. Most members of my party believe this would be a disaster for the country. And most of my party’s voters believe it would be a disaster for the country.

So I’m going to do my best to stop it from happening.

(snip)

…in suggesting that President Obama shouldn’t appoint any replacement for Scalia, and that he should just leave it to the next president, I am rhetorically going further than others have in the past.

But really I’ve just hit the fast-forward button. We would have ended up opposing whomever Obama nominated, because that person would, of course, have had liberal views. And my party’s senators would never have approved any other Obama Supreme Court nominee anyway, because they’re terrified of losing their seats in primaries.

So maybe my “no nominees in the final year” position hasn’t explicitly been taken by anyone before, but it hardly means the death of our constitutional democracy. The near-term upshot is that one Supreme Court seat stays vacant for a year. Some closely divided cases will effectively remain unresolved for a bit. Big deal.

Equal protection: it’s what we do here at the ol’ USA

Pat Ryan Leave a comment

The first time I wrote about gay marriage rights here was more than four and half years ago  (“Equal justice for all: the gay rights tide has turned,” Oct. 15, 2010) and the kernel of the argument was already formed:

We can proclaim not to understand why people are homosexual, or embrace a religious belief that homosexual activity is a sin, but none of that matters in a tolerant, secular, civil society.  The experts can’t say why a person is sexually attracted to one gender or the other.  And it violates the rights of due process and free speech guaranteed to each American in the Constitution to treat someone differently because of their sexual orientation just as it would to treat them differently because of their gender or their ancestry.

(snip)

You don’t have to “understand” gay people any more than you have to “understand” people of a different race or a different religion.  You only have to understand that these people are Americans like you, who believe in American rights like you do, who want to enjoy American freedoms like you do…

This week, history: a 5-4 decision from the Supreme Court of the United States in Obergefell v Hopkins takes its place alongside the great civil rights and civil liberties decisions of American jurisprudence.  The U.S. Constitution guarantees the right of all Americans to civil marriage, and all its advantages and protections, be they heterosexual, homosexual, bisexual, or asexual.  As far as the civil law is concerned this isn’t about sex: it’s about equal treatment under the law.

Homosexual conduct is no longer a civil crime in this country, and thus is no reason to withhold the full rights and exercise of citizenship from homosexuals.  Homosexual conduct is objectionable within many organized religions, to be sure, and virtually all of the opposition to extending the right to marry to gays and lesbians has come on religious grounds.  For the most part I don’t question the sincerity of that religious belief (although it would be prudent to account for the cynical exploiters, primarily from the political realm).

But that’s beside the crucial point, which is that, in this country, civil law is not answerable to religious law.  The First Amendment guarantees that we each and all get the freedom to practice our religions, but also guarantees that none of those religions wields authority directly over civil society.  The Constitution protects us from any majority that would try to force one or another religious doctrine onto everyone—because the Constitution takes religious liberty for all just that seriously—and guarantees that all men and women deserve equal treatment under law.  Despite the nearly hysterical dissenting opinions of some of his colleagues, Justice Anthony Kennedy’s decision didn’t create a new right; it reminded us about a right that’s been there all along…and my friend Mr. Jefferson recognized the rationale by which Kennedy connected the dots (and Peter Foster of the Daily Telegraph reminded via the Twitterverse) long ago:

Obergefell does not mean that First Amendment protections of religious liberties are at risk, despite what you’ve heard.  Some of that reaction is well-intentioned misinformation; most is hot air from right-wing politicians and conservative religious extremists who need a boogieman to scare their supporters into donating money.  (I’m looking at you, Governor Abbott—thanks, Evan Smith for the Tweet-tip.)  In either case, they are wrong.  Religious organizations are exempt from this ruling, as they are exempt from many other laws, like, say, tax laws.  As Lisa Falkenberg put it in this morning’s Houston Chronicle, this ruling has no applicability to individuals in their private lives or to private religious institutions: “It does not keep anyone from judging, or hating, or even just politely refusing to acknowledge gay people.  No court ruling has ever told a pastor whose wedding he or she can bless.  That hasn’t changed.”

It is possible to believe in the religious sacrament of marriage and still accept this court’s decision on civil marriage rights for homosexuals.  Michigan Representative Justin Amash, a Tea Party/Libertarian/Republican, made the point quite nicely this week on Facebook:

Throughout history, different cultures have defined marriage according to their own customs and practices. Christians, Jews, Muslims, Buddhists, Hindus, agnostics, and atheists do not share identical views on marriage. In fact, significant differences regarding marriage exist even within Christianity.

What makes marriage traditional is not its adherence to a universal definition but rather that it is defined by personal faith, not by government. For thousands of years, marriage flourished without a universal definition and without government intervention. Then came licensing of marriage. In recent decades, we’ve seen state legislatures and ballot initiatives define marriage, putting government improperly at the helm of this sacred institution.

Those who care about liberty should not be satisfied with the current situation. Government intervention in marriage presents new threats to religious freedom and provides no advantages, for gay or straight couples, over unlicensed (i.e., traditional) marriage. But we shouldn’t blame the Supreme Court for where things stand.

To the extent that Americans across the political spectrum view government marriage as authoritative and unlicensed marriage as quaint, our laws must treat marriage—and the corresponding legal benefits that attach—as they would any other government institution. So, while today’s Supreme Court opinion rests upon the false premise that government licensure is necessary to validate the intimate relationships of consenting adults, I applaud the important principle enshrined in this opinion: that government may not violate the equal rights of individuals in any area in which it asserts authority. (emphasis added)

The civil right of marriage is open to all Americans.  We must be diligent about making sure that the implementation of this decision protects the First Amendment rights of those with a religious objection to same-sex marriage, keeping in mind that it doesn’t give them the right to ignore the law.  And while we’re at it we should work on getting rid of the laws which still permit discrimination against gay Americans in the areas of housing and hiring and other aspects of day to day life, and any other laws that violate anyone’s right to equal treatment.  Because we’re Americans, and that’s what we do.

Get yer red-hot SCOTUS arguments, right here!

Pat Ryan Leave a comment

The briefs and the arguments for today’s Supreme Court of the United States hearing on the same-sex marriage case are available…go have a read and a listen, and we can all join the High Nine in deciding the case!

This is the stuff of history, kids…don’t miss it.

It’s a good news/bad news Friday

Pat Ryan 1 Comment

The good news comes from the Supreme Court of the United States, which has decided that it will hear arguments on whether or not same-sex couples have a right to marry. This New York Times story summarizes the cases from Ohio, Tennessee, Michigan and Kentucky that are at the heart of an appeal of a decision from the United States Court of Appeals for the Sixth Circuit which the High Nine have now agreed to consider.

The court said it will hear two and a half hours of argument, probably in the last week of April. The first 90 minutes will be devoted to the question of whether the Constitution requires states “to license a marriage between two people of the same sex.”

The last hour will concern a question that will be moot if the answer to the The first one is yes: whether states must “recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.”

This is very exciting: within just a few months we’ll have a ruling from the country’s highest court on whether same-sex marriage is to be permitted in all 50 states, not just the 36 states and the District of Columbia where it is legal now.

Now, the bad news: the Southern Education Foundation believes that “For the first time in at least 50 years, a majority of U.S. public school students come from low-income families.”  The Washington Post has a good summary of the report.

Half of all public school students in America are poor?  Half?!  (More than half in 21 states; Mississippi at 71% has the highest percentage.)  I find myself surprised by this confirmation of how far the abandonment of our public schools has gone by those who can afford other options.  (Full disclosure: although most of my education was in public schools, I attended and graduated from a private high school.)  A free public education for all was a great example of America’s commitment to a society where everyone has an opportunity to succeed.  We all paid our share for public schools, even those who sent their kids to private school or whose kids had finished school or who never had any kids at all, because it meant a better-educated society and that was a benefit for all of us.

But more and more, people became unhappy with their public school systems.  When the quality of the education declined people got upset that their kids were being cheated out of their futures; in some cases it was court-ordered desegregation that made people unhappy with their public schools.  Many of those who could afford to moved to suburban school districts and took their tax money with them, leaving the city schools with less and less money to spend on teachers and books and buildings.  Which meant even poorer quality education, which prompted more parents to flee, and the cycle continued.

Today people are trying to get voucher laws passed that will in effect allow their school tax money to pay for their kid’s education in private schools, taking even more money out of the system that is the only resort for the poor, the students whose families can’t afford private schools or charter schools or anything other than the old school down the street.

I understand that parents want the best for their children; I get it that despite recent improvements our economy isn’t as strong as it once was and a lot of people don’t have the jobs and income they want and deserve.  Still, I’m saddened at how many people seem to feel that abandoning the greater good for American society—the education of everyone else’s children—is the best way for them to take care of their own.