Henry A. Giroux and Hasan Minhaj on the White Supremacist Roots and Intellectual, Ideological, Cultural, and Political Content and Historical Identity of Education in the United States

Affirmative Action | Patriot Act with Hasan Minhaj | Netflix Netflix Is A Joke

All,

This brilliant and bitterly HILARIOUS statement by Hasan Minaj is--and has always been-- one of the most profound, HONEST, ACCURATE AND ABSOLUTELY TRUE ANALYSES OF THE ACTUAL REALITY OF WHAT AFFIRMATIVE ACTION IS AND MEANS---AND WHAT IT ALWAYS WAS IN THE LARGER CONTEXT OF THE ENTIRE WARPED HISTORY OF THIS VIRULENTLY WHITE SUPREMACIST NATION .

SO THANK YOU HASAN. I laughed outloud in 2018 when you first aired this brilliant fucking TAKEDOWN of the massive racist FRAUD the "critical discourse" surrounding AA is and has always been and I'm laughing even harder at your deeply incisive and right on target exegesis through extremely bitter fucking tears five years later.

SHARE THIS BEAUTIFUL VIDEO WITH EVERYONE YOU KNOW...or just tell yourself and others a million more racist delusional LIES about what Affirmative Action actually is and means…

Kofi

"What's Past is Prologue..."

Affirmative Action | Patriot Act with Hasan Minhaj | Netflix

Netflix Is A Joke

October 28, 2018 

#HasanMinhaj #PatriotAct #Netflix

Hasan Minhaj breaks down the history of affirmative action, its impact on his experience with the modern education system, and how a recent lawsuit against Harvard that could go to the Supreme Court could change it forever.

VIDEO: 

 

"It is certain in any case that Ignorance, allied with power, is the most ferocious enemy justice can have." 

--James Baldwin 

 

DEFEAT FASCISM BEFORE FASCISM DEFEATS YOU

https://www.laprogressive.com/election.../apartheid-pedagogy

 
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DeSantis’s Apartheid Pedagogy in the Age of Fascist Politics

It is hard to understand how African Americans who were raped, tortured, whipped, and subject to unimaginable acts of dehumanization somehow benefited from the horrors of slavery.

by Henry A. Giroux
July 23, 2023
LAProgressive

IMAGE: Cagle Cartoon: Dave Granlund

The cult of manufactured ignorance now works through disimagination machines engaged in a politics of falsehoods and erasure. Matters of justice, ethics, equality, and historical memory now vanish from the classrooms of public and higher education and from powerful cultural apparatuses and social media platforms that have become the new teaching machines.

In the current era of white supremacy, the most obvious version of apartheid pedagogy is present in attempts by Republican Party politicians to rewrite the narrative regarding who counts as an American, especially in the whitening of American history. This whitening of collective identity is largely reproduced by right-wing attacks on diversity and race sensitivity training, critical race programs in government, and social justice and racial issues in the schools. These bogus assaults are all too familiar and include widespread and coordinated ideological and pedagogical attacks against both historical memory and critical forms of education.

The fight to censor critical, truth-telling versions of American history and the current persistence of systemic racism is part of a larger conservative project to prevent teachers, students, journalists, and others from speaking openly about crucial social issues that undermine a viable democracy. Such attacks are increasingly waged by conservative foundations, anti-public intellectuals, politicians, and media outlets. These include right-wing think tanks such as Heritage Foundation and Manhattan Institute, conservative scholars such as Thomas Sowell, right-wing politicians such as Mitch McConnell, and far-right media outlets such as City Journal, The Daily Caller, Federalist, and Fox News. The threat of teaching children about the history and systemic nature of racism appears particularly dangerous to politicians such as Florida Gov. Ron DeSantis, who claim that critical race theory and other “anti-racist” programs constitute forms of indoctrination that threatens to undermine the alleged foundations of Western Civilization.

In doing so, they attempt to undermine and discredit the critical faculties necessary for students and others to examine history as a resource in order to “investigate the core conflict between a nation founded on radical notions of liberty, freedom, and equality, and a nation built on slavery, exploitation, and exclusion.”[1]

White ignorance is crucial to upholding the poison of white supremacy.

White ignorance is crucial to upholding the poison of white supremacy. Apartheid pedagogy is about denial and disappearance—a manufactured ignorance that attempts to whitewash history and rewrite the narrative of American exceptionalism as it might have been framed in in the 1920s and 30s when members of a resurgent Ku Klux Klan shaped the policies of some school boards. Apartheid pedagogy uses education as a disimagination machine to convince students and others that racism does not exist, that teaching about racial justice is a form of indoctrination, and that understanding history is more an exercise in blind reverence than critical analysis. Apartheid pedagogy aims to reproduce current systems of racism rather than end them. Apartheid pedagogy most ardent proponent is Florida Gov. Ron DeSantis who has become America's most prominent white supremacist. Nowhere is his version of apartheid pedagogy most obvious than in the new African American history standards adopted in 2023 by the Florida Board of Education. Under the new standards, middle-school students are told that slaves benefited from slavery by “developing new skills which…could be applied to their personal benefit.”

It is hard to understand how African Americans who were raped, tortured, whipped, and subject to unimaginable acts of dehumanization somehow benefited from the horrors of slavery. This is white supremacy on steroids. Under this form of apartheid pedagogy, students are also instructed that the acts of violence committed against African-Americans [as in] the “1905 Atlanta race riot, 1919 Washington, D.C. Race Riot, 1920 Ocoee Massacre, 1921 Tulsa Massacre and the 1923 Rosewood Massacre” were perpetrated not only by whites but also by African Americans.[2] White supremacy is once again rewriting history by stating that mass violence and massacres committed by white racist mobs were sparked by violence from Blacks. In fact, in all of these massacres, whites entered Black communities and destroyed homes, businesses, and murdered Blacks. Two examples will suffice.

In the November 2, 1920, the Ocoee massacre took place. As Isis Davis-Marks observes, a white mob “of around 250 burned 22 homes, 2 churches and a fraternal lodge. The number of black residents killed in the attack remains unknown, with estimates ranging from 3 to 60. Several contemporary observers placed the death toll at between 30 and 35.” [3]

During the Tulsa Race Massacre, which took place on May 30, 1921. whites committed numerous acts of violence against Black people. The Red Cross later estimated that “some 1,256 houses were burned; 215 others were looted but not torched. Two newspapers, a school, a library, a hospital, churches, hotels, stores and many other Black-owned businesses were among the buildings destroyed or damaged by fire.”[4] 36 Black people were murdered.

DeSantis’ attempt to rewrite history and engage in a form of apartheid pedagogy is an attempt to both cover up this violence and strip away a history of structural racism. It is also an attempt to eliminate those historical narratives that instruct us to see what is wrong in our history so it cannot be repeated. This type of racist pedagogy is aimed at both whitewashing history and erasing the hard-fought struggles by African Americans to expand and protect their fundamental rights. Under such circumstances, history becomes a petri dish of lies designed to shift the country into a time when white oppression was legitimated and normalized. In addition, DeSantis’ attempt to distort the authoritarian ideology, menacing tactics, and violence aimed at those groups considered excess, a threat, and disposable is part of a larger attempt to erase how his own politics are closely aligned with fascist ideologies and practices rooted in the past.[5]

This is a form of “patriotic education” being put in place by a resurgence of those who support Jim Crow power relations and want to impose pedagogies of repression on students in the classroom. This type of retribution is a part of a longstanding politics of fear, censorship and academic repression that has been waged by conservatives since the student revolts of the 1960s.[6]

The public imagination is now in crisis. Radical uncertainty has turned lethal. In the current historical moment, tyranny, fear, and hatred have become defining modes of governance and education. Right-wing politicians bolstered by the power of corporate controlled media now construct ways of thinking and feeling that prey on the anxieties of the isolated, disenfranchised, and powerless. to substitute disillusionment and incoherence for a sense of comforting ignorance, the thrill of hyper-masculinity, and the security that comes with the militarized unity of the accommodating masses waging a war on democracy. The public imagination is formed through habits of daily life, but only for the better when such experiences are filtered through the ideals and promises of a democracy. This is no longer true. Under neoliberal fascism, the concentration of power in the hands of a ruling elite has ensured that any notion of change regarding equality and justice is now tainted, if not destroyed, as a result of what Theodor Adorno called a retreat into apocalyptic bombast marked by “an organized flight of ideas.”[7]

America’s slide into a fascist politics demands a revitalized understanding of the historical moment in which we find ourselves

America’s slide into a fascist politics demands a revitalized understanding of the historical moment in which we find ourselves, along with a systemic critical analysis of the new political formations that mark this period. Part of this challenge is to create a new language and mass social movement to address and construct empowering terrains of education, politics, justice, culture, and power that challenge existing systems of racist violence and economic oppression.

Any viable pedagogy of resistance needs to create the educational and pedagogical tools to produce a radical shift in consciousness, capable of both recognizing the scorched earth policies of neoliberal capitalism, and the twisted ideologies that support it. This shift in consciousness cannot take place without pedagogical interventions that speak to people in ways in which they can recognize themselves, identify with the issues being addressed, and place the privatization of their troubles in a broader systemic context.[8] Niko Block gets it right in arguing for a “radical recasting of the leftist imagination,” in which the concrete needs of people are addressed and elevated to the forefront of public discussion in order to address and get ahead of the crises of our times. He writes:

"The crises of the twenty-first century call for a radical recasting of the leftist imagination. This process involves building bridges between the real and the imaginary, so that the path to achieving political goals is plain to see. Accordingly, the articulation of leftist goals must resonate with people in concrete ways, so that it becomes obvious how the achievement of those goals would improve their day-to-day lives. The left, in this sense, must appeal to people’s existing identities and not condescend the general public as victims of “false consciousness.” All this means building movements of continual improvement and refusing to ask already-vulnerable people for short-term losses on the abstract promise of long-term gains. This project also demands that we understand precisely why right-wing ideology retains a popular appeal in so many spaces.[9]

A pedagogy of resistance must be on the side of hope and civic courage in order to fight against a paralyzing indifference, grave social injustices, and mind deadening attacks on the public imagination. At stake here is the struggle for a new world based on the notion that capitalism and democracy are not the same, and that we need to understand the world, how we think about it and how it functions, in order to change it. In the spirit of Martin Luther King, Jr’s call for a more comprehensive view of oppression and political struggle, it is crucial to address his call to radically interrelate and restructure consciousness, values, and society itself. In this instance, King and other theorists such as Saskia Sassen call for a language that ideologically ruptures and changes the nature of the debate about democracy, education, politics, hope, and social justice. We live in an era in which the distinction between the truth and misinformation is under attack. Ignorance has become a virtue, and education has become a tool of repression that elevates self-interest and privatization to central organizing principles of both economics and politics. The socio-historical conditions that enable racism, systemic inequality, anti-intellectualism, mass incarceration, the war on youth, poverty, state violence, and domestic terrorism must be remembered in the fight against that which now parades as ideologically normal. Historical memory and the demands of moral witnessing must become part of a deep grammar of political and pedagogical resistance in the fight against neoliberal capitalism and its updated forms of fascism.

Central to any viable notion of pedagogical resistance is the courage to think about what kind of world we want—what kind of future we want to build for our children. These are questions that can only be addressed when address politics and capitalism as part of a general crisis of democracy. This challenge demands the willingness to develop an anti-capitalist consciousness as the basis for a call to action, one willing to dismantle the present structure of neoliberal capitalism. Chantal Mouffe is right in arguing that “before being able to radicalize democracy, it is first necessary to recover it,” which means first rejecting the commonsense assumptions that capitalism and democracy are synonymous.[10]


[11] There is ample evidence of such solidarity in the policies advocated by the progressive Black Lives Matter protest, the call for green socialism, movements for health as a global right, growing resistance against police violence, emerging ecological movements such as the youth-based Sunrise movement, the Poor People’s Campaign, the massive ongoing strikes waged by students and teachers against the defunding and corporatizing of public education, and the call for resistance from women across the globe fighting for reproductive rights.

What must be resisted at all costs, is an “apartheid pedagogy,” rooted in the notion that a particular mode of oppression, and those who bear its weight, offers political guarantees.[12] Identifying different modes of oppression is important, but it is only the first step in moving from addressing the history and existing mechanisms that produce such trauma to developing and embracing a politics that unites different identities, individuals, and social movements under the larger banner of democratic socialism. This is a politics that refuses the easy appeals of ideological silos which “limits access to the world of ideas and contracts the range of tools available to would-be activists.”[13]

The urgency of the historical moment demands new visions of social change, an inspired and energized sense of social hope, and the necessity for diverse social movements to unite under the collective struggle for democratic socialism. The debilitating political pessimism of neoliberal gangster capitalism must be challenged as a starting point for believing that rather than being exhausted, the future along with history is open and now is the time to act. It is time to make possible what has for tool long been declared as impossible.

NOTES:

[1] George Sanchez and Beth English, “OAH Statement on White House Conference on American History,” Organization of American History (September 2020). Online.
[2] Antonio Planas. “New Florida standards teach students that some Black people benefited from slavery because it taught useful skills,” NBC News (July 20, 2023). Online:
[3] Isis Davis-Marks, “The Little-Known Story of America’s Deadliest Election Day Massacre,” Smithsonian Magazine (November 13, 2020). Online:
[4] History.com editors, “Tulsa Race Massacre,” History (May 31, 2023).
[5] This issue is taken up brilliantly by Federico Finchelstein, A Brief History of Fascist Lies (Oakland: University of California Press, 2020).
[6] Michelle Goldberg, “The Campaign to Cancel Wokeness,” New York Times. (February 26, 2021).
[7] Volker Weiss, “afterword,” in Theodor W. Adorno, Aspects of the New Right-Wing Extremism (London: Polity, 2020), p. 61.
[8] See Robert Latham, A. T. Kingsmith, Julian von Bargen and Niko Block, eds Challenging the Right, Augmenting the Left—Recasting Leftist Imagination (Winnipeg, Canada: Fernwood Publishing, 2020).
[9] Nico Block, “Augmenting the Left: Challenging the Right, Reimagining Transformation,” Socialist Project: the Bullet (August 31, 2020).
[10] Chantal Mouffe, For a Left Populism, [London: Verso, 2018], p. 37.
[11] Institute for Critical Social Analysis, “A Window of Opportunity for Leftist Politics?” Socialist Project: the Bullet (August 3, 2020).
[12] I have taken the notion of “apartheid pedagogy” from Adam Shatz, “Palestinianism” London Review of Books (43:9 (May 6, 2021), p. 28.
[13] Robin D.G. Kelley, “Black Study, Black Struggle – final response,” Boston Review, (March 7, 2016).
The opinions expressed here are solely the author's and do not reflect the opinions or beliefs of the LA Progressive.


TAGS: RacismfascismRonDesantiswhitesupremacydesantis



ABOUT THE AUTHOR:


Henry A. Giroux currently holds the McMaster University Chair for Scholarship in the Public Interest in the English and Cultural Studies Department and is the Paulo Freire Distinguished Scholar in Critical Pedagogy. His most recent books include: The Terror of the Unforeseen (Los Angeles Review of books, 2019), On Critical Pedagogy, 2nd edition (Bloomsbury, 2020); Neoliberalism’s War on Higher Education, 2nd edition (Haymarket Books 2020); and Race, Politics, and Pandemic Pedagogy: Education in a Time of Crisis (Bloomsbury 2021), Pedagogy of Resistance: Against Manufactured Ignorance (Bloomsbury 2022). His latest book is Insurrections: Education in the Age of Counter-revolutionary politics (Bloomsbury in 2023). His website is www.henryagiroux.com


IMAGE: Cagle Cartoon: Dave Granlund

The Horrific Death Toll in Gaza Has Been Enormous and Has Now Reached Unprecedented Levels with No End in Sight. Over 20,000 Gazans Are Dead, including over 8,000 Children

https://www.nytimes.com/2023/12/21/world/middleeast/gaza-death-toll-palestinians.html

Gaza Deaths Surpass Any Arab Loss in Wars With Israel in Past 40 Years

The death toll reported in Gaza has surpassed 20,000, according to officials in the territory, the heaviest loss on the Arab side in any war with Israel since the 1982 Lebanon invasion.

 
by Liam Stack
December 21, 2023
New York Times

PHOTO:  Palestinians bidding farewell to relatives killed in the war at Nasser hospital in Khan Younis this month. Credit: Yousef Masoud for The New York Times

The number of Gaza residents reported killed during Israel’s 10-week-old war in the territory has already surpassed the toll for any other Arab conflict with Israel in more than 40 years and perhaps any since Israel’s founding in 1948.

The Gaza Health Ministry said on Thursday that the death toll had exceeded 20,000 for the first time, putting it just above one of the most authoritative estimates of those killed in Lebanon by Israel’s 1982 invasion.

And though Gaza officials have said counting the dead has become increasingly challenging, most experts say the figure is likely an undercount and express shock at the enormity of the loss. Some military experts said more people had been killed more quickly in this war than during the deadliest stages of the U.S.-led wars in Afghanistan or Iraq.

Azmi Keshawi, the Gaza analyst for the International Crisis Group think tank, said this war was “more horrifying” than any he had experienced before. He said he and his family had fled his home in northern Gaza and moved six times so far. They now live in a tent near a U.N. shelter in the southern city of Rafah.

The Gaza Health Ministry has said that about 70 percent of those killed in the war are believed to be women and children. Credit:  Yousef Masoud for The New York Times

The Israeli military has engaged in an intense air and ground campaign to eliminate Hamas, the armed Palestinian group that rules Gaza and led the Oct. 7 attack that officials say killed about 1,200 people in Israel — the majority of them civilians but also including hundreds of soldiers. The assailants still hold scores of hostages.

The high death toll reflects how Israel has chosen to wage the war, using thousands of airstrikes, heavy bombs and artillery in a small territory densely packed with civilians who cannot escape. Israel has said Hamas built an extensive tunnel network underground to shield its fighters and weapons, putting civilian infrastructure and people on the ground in the line of fire.

The Gaza war was already thought to be the deadliest conflict for Palestinians in the 75 years since Israel was established. According to the Palestinian Central Bureau of Statistics, an estimated 15,000 Palestinians were killed during the war surrounding Israel’s creation in 1948.

The deaths in the current conflict, if the figures from Gaza are accurate, have also exceeded the most widely cited estimate of the toll for the initial three months of the 1982 invasion of Lebanon. But as in Gaza today, researchers say the number killed in Lebanon may never be known with confidence because of the fog of war, even four decades later.

Palestinian women looking for the bodies of relatives in the Sabra refugee camp in West Beirut in 1982. Credit: Bettmann, via Getty Images

That estimate comes from an analysis of police and hospital records compiled in 1982 by the newspaper An Nahar, which at the time was among the Arab world’s most respected. It put the death toll at 17,825. But the paper said that tally was most likely an undercount, and in 1982, The Times reported that “numbering the dead correctly is virtually impossible” in Lebanon.

In the 1967 Middle East war, nearly 19,000 Egyptians, Syrians and others were estimated to have been killed fighting Israel, while a similar number — mostly Syrians and Egyptians — died in the 1973 war, according to The Associated Press. As in the Gaza and Lebanon wars, the exact tolls for these wars are also not known, but most of the dead were believed to be combatants.

In contrast, the Gaza Health Ministry, which is part of the Hamas-run government there, has said that about 70 percent of those killed are women and children. On Thursday, the ministry said the death toll had reached 20,057 but the Gaza authorities never give breakdowns for how many of those killed are combatants.

Israel claims it has killed some 7,000 Hamas fighters, but has not explained how it arrived at that number.

The toll in Gaza is expected to rise significantly when Palestinians are able to dig out of the vast destruction that the war has wrought. A Gazan government spokesman said Wednesday that in addition to the dead, 6,700 people are missing. Many are believed to still be buried in the rubble.

“The likelihood is that many people who are missing under the rubble will be determined to have been killed,” said Omar Shakir, the Israel and Palestine director for Human Rights Watch. For that reason, the death toll is “likely to increase even if the bombing were to stop today,” he added.

 

Gaza officials say thousands of people are still missing and presumed dead, believed to be buried under the rubble amid the vast destruction across Gaza. Credit: Yousef Masoud for The New York Times

 

No independent organizations have been able to verify the Gaza death toll because of the difficulties of operating in the territory. And as the conflict has ground on, the casualty numbers have become more difficult to collect.


The Gaza Health Ministry compiles death toll data from the records of local hospitals and morgues, officials in the territory have said. But in recent weeks, the government media office said it had stepped in to help gather the figures after the Health Ministry’s facilities were bombed and 27 of the 36 hospitals in Gaza were rendered unusable by airstrikes amid an Israeli siege that has tightly restricted food, water, fuel and medicine from entering.

Frequent disruptions in communications caused by Israeli attacks on telecommunication towers, Israeli control of the enclave’s communication lines and fuel shortages have also made gathering information very difficult.

Mahmoud al-Farra, a spokesman for the government media office, said the people collecting the data had to make the most of the “available possibilities” amid the fighting. “It’s hard to count them because the number of martyrs is large,” he added.

 

An estimated 85 percent of Gaza’s population of more than 2 million have left their homes in an attempt to flee Israel’s airstrikes and ground invasion. Credit:  Samar Abu Elouf for The New York Times

Throughout the war, the Gaza Health Ministry has released updated death tolls that have been called broadly reliable by the U.N., humanitarian groups and a study published this month in The Lancet, a British medical journal.

This month, when the ministry said the death toll had passed 15,000, some Israeli officials said they believed that figure to be roughly accurate. However, the Israeli military has also said the death toll reported in Gaza could not be trusted because the territory is run by Hamas.

On Oct. 26, the ministry released a list of the names and ID numbers of 6,747 people it said had been killed up to that point by Israeli bombing — an accounting that enhanced the credibility of its numbers.

The ministry’s staff includes many civil servants that predate the Hamas takeover of Gaza in 2007, and humanitarian groups have defended its record. They say it has a history of good faith reporting and has provided reliable information.

But the ministry came under criticism after an Oct. 17 explosion at Al-Ahli Arab Hospital in Gaza City, when the government almost instantaneously released casualty figures that ranged from 500 to 833 dead. Days later, it announced a final count of 471.

After the explosion, John F. Kirby, a White House spokesman, called the ministry “a front for Hamas,” and President Biden told reporters he had “no notion that the Palestinians are telling the truth about how many people are killed.”

Mr. Biden then added: “I’m sure innocents have been killed, and it’s the price of waging a war.”


Palestinians buried 111 bodies in a mass grave at a cemetery in Khan Younis, in southern Gaza, in November. The bodies were brought to Khan Younis from northern Gaza. Credit:  Yousef Masoud for The New York Times

The war has posed myriad other complications for compiling accurate casualty counts.

An estimated 85 percent of Gaza’s population of more than two million have fled their homes, after Israel ordered the evacuation of much of the territory, to try to escape Israel’s airstrikes and ground invasion. Its largest population center, Gaza City, has been reduced to rubble. Thousands sleep on the street, and others live in overcrowded shelters that teem with disease.

There has been virtually no electricity for more than two months. Food and clean water are scarce. The U.N. says half the population is at risk of starvation, and 90 percent regularly go without food for a whole day.


Palestinians from the Abu Namous family searched for the freshly dug graves of their relatives who were killed and buried in the Deir al-Balah cemetery in November. Credit:  Samar Abu Elouf for The New York Times
 

Ahmed Fouad Alkhatib, a vocal critic of Hamas who grew up in Gaza but now lives in California, said Israeli airstrikes have so far killed more than 30 members of his family, including people in their 70s and cousins between the ages of 3 months and 9 years old.


Early in the war, he said, his childhood home was bombed, killing one young cousin. And last week, his aunt and uncle’s home was bombed, killing at least 31 people. Sitting in California, he watched video of their destroyed home on his phone. None of the people there were affiliated with Hamas, he said.

“It was a family home,” he said.

Iyad Abuheweila, Adam Sella and Isabel Kershner contributed reporting.

ABOUT THE AUTHOR:

Liam Stack is a Times reporter who covers the culture and politics of the New York City region. More about Liam Stack

 
A version of this article appears in print on Dec. 22, 2023, Section A, Page 8 of the New York edition with the headline: Gaza Deaths Surpass Any Arab War Losses in 40 Years. Order Reprints | Today’s Paper
"Absolutely Unimaginable": Children in Gaza Face Amputations Without Anesthesia, Death & Disease





Democracy Now!

December 28, 2023

 
VIDEO: 

Israel has killed more than 8,200 children in Gaza, which the U.N. now calls the most dangerous place in the world to be a child.

We speak with Steve Sosebee of the Palestine Children's Relief Fund, which provides medical and humanitarian aid to Palestinian children in Gaza and the West Bank, about how at least six Palestinians the organization had brought to the United States for free medical care have now been killed in Gaza. Sosebee shares the stories of Izzeddin Nawasra and Mohammed Al-Ajouri, two young men who were shot by Israeli snipers during the Great March of Return protests in 2018 and received medical care in the U.S. from PCRF. Both were killed alongside their families by Israeli airstrikes on and after Christmas Day. Sosebee also describes the state of medical care in Gaza, where patients are being forced to undergo amputations without anesthesia and forgo life-saving medications amid Israel's ongoing blockade.

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The Fundamental Crisis and Foundational Contradiction Facing the United States During the Upcoming Presidential Election Year of 2024: Fascism guided, informed, and enabled by the Doctrines and Practices of White Supremacy and Global Capitalism--PART 8

https://www.thenation.com/article/society/kbj-dissent-affirmative-action/

Society
 

“A Tragedy for Us All”: Justice Ketanji Brown Jackson’s Dissent

The justice did not mince words in her dissent of the conservative supermajority’s decision striking down affirmative action in college admissions.

by Ketanji Brown Jackson
June 29, 2023
The Nation 

PHOTO: Ketanji Brown Jackson, associate justice of the US Supreme Court (center), following a State of the Union address at the US Capitol on Feb. 7, 2023. (Photographer: Jacquelyn Martin / Bloomberg / AP)

In a devastating blow to the fight for racial justice in the United States, the US Supreme Court on Friday eliminated affirmative action in higher education. In her dissenting opinion, Justice Ketanji Brown Jackson called out her conservative colleagues for “interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.” Read her dissent in its entirety below.

Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Yet, today, the Court determines that holistic admissions programs like the one that the University of North Carolina (UNC) has operated, consistent with Grutter v. Bollinger, 539 U. S. 306 (2003), are a problem with respect to achievement of that aspiration, rather than a viable solution (as has long been evident to historians, sociologists, and policymakers alike).

Justice Sotomayor has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start. Students for Fair Admissions (SFFA) has maintained, both subtly and overtly, that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants.

This contention blinks both history and reality in ways too numerous to count. But the response is simple: Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry.

Related Article:


The Supreme Court Has Killed Affirmative Action. Mediocre Whites Can Rest Easier.

by Elie Mystal and The Nation

It is that inequality that admissions programs such as UNC’s help to address, to the benefit of us all. Because the majority’s judgment stunts that progress without any basis in law, history, logic, or justice, I dissent.

I

A

Imagine two college applicants from North Carolina, John and James. Both trace their family’s North Carolina roots to the year of UNC’s founding in 1789. Both love their State and want great things for its people. Both want to honor their family’s legacy by attending the State’s flagship educational institution. John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black. Does the race of these applicants properly play a role in UNC’s holistic merits-based admissions process?

To answer that question, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). Many chapters of America’s history appear necessary, given the opinions that my colleagues in the majority have issued in this case.

Justice Thurgood Marshall recounted the genesis:

“Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 387–388 (1978).

Slavery should have been (and was to many) self-evidently dissonant with our avowed founding principles. When the time came to resolve that dissonance, eleven States chose slavery. With the Union’s survival at stake, Frederick Douglass noted, Black Americans in the South “were almost the only reliable friends the nation had,” and “but for their help . . . the Rebels might have succeeded in breaking up the Union.” After the war, Senator John Sherman defended the proposed Fourteenth Amendment in a manner that encapsulated our Reconstruction Framers’ highest sentiments: “We are bound by every obligation, by [Black Americans’] service on the battlefield, by their heroes who are buried in our cause, by their patriotism in the hours that tried our country, we are bound to protect them and all their natural rights.”

To uphold that promise, the Framers repudiated this Court’s holding in Dred Scott v. Sandford, 19 How. 393 (1857), by crafting Reconstruction Amendments (and associated legislation) that transformed our Constitution and society. Even after this Second Founding—when the need to right historical wrongs should have been clear beyond cavil—opponents insisted that vindicating equality in this manner slighted White Americans. So, when the Reconstruction Congress passed a bill to secure all citizens “the same [civil] right[s]” as “enjoyed by white citizens,” 14 Stat. 27, President Andrew Johnson vetoed it because it “discriminat[ed] . . . in favor of the negro.”

That attitude, and the Nation’s associated retreat from Reconstruction, made prophesy out of Congressman Thaddeus Stevens’s fear that “those States will all . . . keep up this discrimination, and crush to death the hated freedmen.” And this Court facilitated that retrenchment. Not just in Plessy v. Ferguson, 163 U. S. 537 (1896), but “in almost every instance, the Court chose to restrict the scope of the second founding.” Thus, thirteen years pre-Plessy, in the Civil Rights Cases, 109 U. S. 3 (1883), our predecessors on this Court invalidated Congress’s attempt to enforce the Reconstruction Amendments via the Civil Rights Act of 1875, lecturing that “there must be some stage . . . when [Black Americans] tak[e] the rank of a mere citizen, and ceas[e] to be the special favorite of the laws.” Id., at 25. But Justice Harlan knew better. He responded: “What the nation, through Congress, has sought to accomplish in reference to [Black people] is—what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens; nothing more.” Id., at 61 (dissenting opinion).

Justice Harlan dissented alone. And the betrayal that this Court enabled had concrete effects. Enslaved Black people had built great wealth, but only for enslavers. No surprise, then, that freedmen leapt at the chance to control their own labor and to build their own financial security. Still, White southerners often “simply refused to sell land to blacks,” even when not selling was economically foolish. To bolster private exclusion, States sometimes passed laws forbidding such sales. The inability to build wealth through that most American of means forced Black people into sharecropping roles, where they somehow always tended to find themselves in debt to the landowner when the growing season closed, with no hope of recourse against the ever-present cooking of the books.

Sharecropping is but one example of race-linked obstacles that the law (and private parties) laid down to hinder the progress and prosperity of Black people. Vagrancy laws criminalized free Black men who failed to work for White landlords. Many States barred freedmen from hunting or fishing to ensure that they could not live without entering de facto re-enslavement as sharecroppers. A cornucopia of laws (e.g., banning hitchhiking, prohibiting encouraging a laborer to leave his employer, and penalizing those who prompted Black southerners to migrate northward) ensured that Black people could not freely seek better lives elsewhere. And when statutes did not ensure compliance, state-sanctioned (and private) violence did.

Thus emerged Jim Crow—a system that was, as much as anything else, a comprehensive scheme of economic exploitation to replace the Black Codes, which themselves had replaced slavery’s form of comprehensive economic exploitation. Meanwhile, as Jim Crow ossified, the Federal Government was “giving away land” on the western frontier, and with it “the opportunity for upward mobility and a more secure future,” over the 1862 Homestead Act’s three-quarter-century tenure. Black people were exceedingly unlikely to be allowed to share in those benefits, which by one calculation may have advantaged approximately 46 million Americans living today.

Despite these barriers, Black people persisted. Their so-called Great Migration northward accelerated during and after the First World War. Like clockwork, American cities responded with racially exclusionary zoning (and similar policies). As a result, Black migrants had to pay disproportionately high prices for disproportionately subpar housing. Nor did migration make it more likely for Black people to access home ownership, as banks would not lend to Black people, and in the rare cases banks would fund home loans, exorbitant interest rates were charged. With Black people still locked out of the Homestead Act giveaway, it is no surprise that, when the Great Depression arrived, race-based wealth, health, and opportunity gaps were the norm.

Federal and State Governments’ selective intervention further exacerbated the disparities. Consider, for example, the federal Home Owners’ Loan Corporation (HOLC), created in 1933. HOLC purchased mortgages threatened with foreclosure and issued new, amortized mortgages in their place. Not only did this mean that recipients of these mortgages could gain equity while paying off the loan, successful full payment would make the recipient a homeowner. Ostensibly to identify (and avoid) the riskiest recipients, the HOLC “created color-coded maps of every metropolitan area in the nation.” Green meant safe; red meant risky. And, regardless of class, every neighborhood with Black people earned the red designation.

Similarly, consider the Federal Housing Administration (FHA), created in 1934, which insured highly desirable bank mortgages. Eligibility for this insurance required an FHA appraisal of the property to ensure a low default risk. But, nationwide, it was FHA’s established policy to provide “no guarantees for mortgages to African Americans, or to whites who might lease to African Americans,” irrespective of creditworthiness. No surprise, then, that “[b]etween 1934 and 1968, 98 percent of FHA loans went to white Americans,” with whole cities (ones that had a disproportionately large number of Black people due to housing segregation) sometimes being deemed ineligible for FHA intervention on racial grounds. The Veterans Administration operated similarly.

One more example: the Federal Home Loan Bank Board “chartered, insured, and regulated savings and loan associations from the early years of the New Deal.” But it did “not oppose the denial of mortgages to African Americans until 1961” (and even then opposed discrimination ineffectively).

The upshot of all this is that, due to government policy choices, “[i]n the suburban-shaping years between 1930 and 1960, fewer than one percent of all mortgages in the nation were issued to African Americans.” Thus, based on their race, Black people were “[l]ocked out of the greatest mass-based opportunity for wealth accumulation in American history.”



For present purposes, it is significant that, in so excluding Black people, government policies affirmatively operated—one could say, affirmatively acted—to dole out preferences to those who, if nothing else, were not Black. Those past preferences carried forward and are reinforced today by (among other things) the benefits that flow to homeowners and to the holders of other forms of capital that are hard to obtain unless one already has assets.

This discussion of how the existing gaps were formed is merely illustrative, not exhaustive. I will pass over Congress’s repeated crafting of family-, worker-, and retiree-protective legislation to channel benefits to White people, thereby excluding Black Americans from what was otherwise “a revolution in the status of most working Americans.” I will also skip how the G. I. Bill’s “creation of . . . middle-class America” (by giving $95 billion to veterans and their families between 1944 and 1971) was “deliberately designed to accommodate Jim Crow.” So, too, will I bypass how Black people were prevented from partaking in the consumer credit market—a market that helped White people who could access it build and protect wealth. Nor will time and space permit my elaborating how local officials’ racial hostility meant that even those benefits that Black people could formally obtain were unequally distributed along racial lines. And I could not possibly discuss every way in which, in light of this history, facially race-blind policies still work race-based harms today (e.g., racially disparate tax-system treatment; the disproportionate location of toxic-waste facilities in Black communities; or the deliberate action of governments at all levels in designing interstate highways to bisect and segregate Black urban communities).

The point is this: Given our history, the origin of persistent race-linked gaps should be no mystery. It has never been a deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s words, “stand on [their] own legs.” Rather, it was always simply what Justice Harlan recognized 140 years ago—the persistent and pernicious denial of “what had already been done in every State of the Union for the white race.” Civil Rights Cases, 109 U. S., at 61 (dissenting opinion).

B

History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark.

Start with wealth and income. Just four years ago, in 2019, Black families’ median wealth was approximately $24,000. For White families, that number was approximately eight times as much (about $188,000). These wealth disparities “exis[t] at every income and education level,” so, “[o]n average, white families with college degrees have over $300,000 more wealth than black families with college degrees.” This disparity has also accelerated over time—from a roughly $40,000 gap between White and Black household median net worth in 1993 to a roughly $135,000 gap in 2019. Median income numbers from 2019 tell the same story: $76,057 for White households, $98,174 for Asian households, $56,113 for Latino households, and $45,438 for Black households.

These financial gaps are unsurprising in light of the link between home ownership and wealth. Today, as was true 50 years ago, Black home ownership trails White home ownership by approximately 25 percentage points. Moreover, Black Americans’ homes (relative to White Americans’) constitute a greater percentage of household wealth, yet tend to be worth less, are subject to higher effective property taxes, and generally lost more value in the Great Recession.

From those markers of social and financial unwellness flow others. In most state flagship higher educational institutions, the percentage of Black undergraduates is lower than the percentage of Black high school graduates in that State. Black Americans in their late twenties are about half as likely as their White counterparts to have college degrees. And because lower family income and wealth force students to borrow more, those Black students who do graduate college find themselves four years out with about $50,000 in student debt—nearly twice as much as their White compatriots.

As for postsecondary professional arenas, despite being about 13% of the population, Black people make up only about 5% of lawyers. Such disparity also appears in the business realm: Of the roughly 1,800 chief executive officers to have appeared on the well-known Fortune 500 list, fewer than 25 have been Black (as of 2022, only six are Black). Furthermore, as the COVID–19 pandemic raged, Black-owned small businesses failed at dramatically higher rates than White-owned small businesses, partly due to the disproportionate denial of the forgivable loans needed to survive the economic downturn.

Health gaps track financial ones. When tested, Black children have blood lead levels that are twice the rate of White children—“irreversible” contamination working irremediable harm on developing brains. Black (and Latino) children with heart conditions are more likely to die than their White counterparts. Race-linked mortality-rate disparity has also persisted, and is highest among infants.

So, too, for adults: Black men are twice as likely to die from prostate cancer as White men and have lower 5-year cancer survival rates. Uterine cancer has spiked in recent years among all women—but has spiked highest for Black women, who die of uterine cancer at nearly twice the rate of “any other racial or ethnic group.” Black mothers are up to four times more likely than White mothers to die as a result of childbirth. And COVID killed Black Americans at higher rates than White Americans.

“Across the board, Black Americans experience the highest rates of obesity, hypertension, maternal mortality, infant mortality, stroke, and asthma.” These and other disparities—the predictable result of opportunity disparities— lead to at least 50,000 excess deaths a year for Black Americans vis-à-vis White Americans. That is 80 million excess years of life lost from just 1999 through 2020.

Amici tell us that “race-linked health inequities pervad[e] nearly every index of human health” resulting “in an overall reduced life expectancy for racial and ethnic minorities that cannot be explained by genetics.” Meanwhile—tying health and wealth together—while she lays dying, the typical Black American “pay[s] more for medical care and incur[s] more medical debt.”

C

We return to John and James now, with history in hand. It is hardly John’s fault that he is the seventh generation to graduate from UNC. UNC should permit him to honor that legacy. Neither, however, was it James’s (or his family’s) fault that he would be the first. And UNC ought to be able to consider why.

Most likely, seven generations ago, when John’s family was building its knowledge base and wealth potential on the university’s campus, James’s family was enslaved and laboring in North Carolina’s fields. Six generations ago, the North Carolina “Redeemers” aimed to nullify the results of the Civil War through terror and violence, marauding in hopes of excluding all who looked like James from equal citizenship. Five generations ago, the North Carolina Red Shirts finished the job. Four (and three) generations ago, Jim Crow was so entrenched in the State of North Carolina that UNC “enforced its own Jim Crow regulations.” Two generations ago, North Carolina’s Governor still railed against “‘integration for integration’s sake’”—and UNC Black enrollment was minuscule. So, at bare minimum, one generation ago, James’s family was six generations behind because of their race, making John’s six generations ahead.

These stories are not every student’s story. But they are many students’ stories. To demand that colleges ignore race in today’s admissions practices—and thus disregard the fact that racial disparities may have mattered for where some applicants find themselves today—is not only an affront to the dignity of those students for whom race matters. It also condemns our society to never escape the past that explains how and why race matters to the very concept of who “merits” admission.

Permitting (not requiring) colleges like UNC to assess merit fully, without blinders on, plainly advances (not thwarts) the Fourteenth Amendment’s core promise. UNC considers race as one of many factors in order to best assess the entire unique import of John’s and James’s individual lives and inheritances on an equal basis. Doing so involves acknowledging (not ignoring) the seven generations’ worth of historical privileges and disadvantages that each of these applicants was born with when his own life’s journey started a mere 18 years ago.

II

Recognizing all this, UNC has developed a holistic review process to evaluate applicants for admission. Students must submit standardized test scores and other conventional information. But applicants are not required to submit demographic information like gender and race. UNC considers whatever information each applicant submits using a non-exhaustive list of 40 criteria grouped into eight categories: “academic performance, academic program, standardized testing, extracurricular activity, special talent, essay criteria, background, and personal criteria.

Drawing on those 40 criteria, a UNC staff member evaluating John and James would consider, with respect to each, his “engagement outside the classroom; persistence of commitment; demonstrated capacity for leadership; contributions to family, school, and community; work history; [and his] unique or unusual interests.” Relevant, too, would be his “relative advantage or disadvantage, as indicated by family income level, education history of family members, impact of parents/guardians in the home, or formal education environment; experience of growing up in rural or center-city locations; [and his] status as child or stepchild of Carolina alumni.” The list goes on. The process is holistic, through and through.

So where does race come in? According to UNC’s admissions-policy document, reviewers may also consider “the race or ethnicity of any student” (if that information is provided) in light of UNC’s interest in diversity. And, yes, “the race or ethnicity of any student may—or may not—receive a ‘plus’ in the evaluation process depending on the individual circumstances revealed in the student’s application.” Stephen Farmer, the head of UNC’s Office of Undergraduate Admissions, confirmed at trial (under oath) that UNC’s admissions process operates in this fashion.

Thus, to be crystal clear: Every student who chooses to disclose his or her race is eligible for such a race-linked plus, just as any student who chooses to disclose his or her unusual interests can be credited for what those interests might add to UNC. The record supports no intimation to the contrary. Eligibility is just that; a plus is never automatically awarded, never considered in numerical terms, and never automatically results in an offer of admission. There are no race-based quotas in UNC’s holistic review process. In fact, during the admissions cycle, the school prevents anyone who knows the overall racial makeup of the admitted student pool from reading any applications.

More than that, every applicant is also eligible for a diversity-linked plus (beyond race) more generally. And, notably, UNC understands diversity broadly, including “socioeconomic status, first-generation college status . . . political beliefs, religious beliefs . . . diversity of thoughts, experiences, ideas, and talents.”

A plus, by its nature, can certainly matter to an admissions case. But make no mistake: When an applicant chooses to disclose his or her race, UNC treats that aspect of identity on par with other aspects of applicants’ identity that affect who they are (just like, say, where one grew up, or medical challenges one has faced). And race is considered alongside any other factor that sheds light on what attributes applicants will bring to the campus and whether they are likely to excel once there. A reader of today’s majority opinion could be forgiven for misunderstanding how UNC’s program really works, or for missing that, under UNC’s holistic review process, a White student could receive a diversity plus while a Black student might not.

UNC does not do all this to provide handouts to either John or James. It does this to ascertain who among its tens of thousands of applicants has the capacity to take full advantage of the opportunity to attend, and contribute to, this prestigious institution, and thus merits admission. And UNC has concluded that ferreting this out requires understanding the full person, which means taking seriously not just SAT scores or whether the applicant plays the trumpet, but also any way in which the applicant’s race-linked experience bears on his capacity and merit. In this way, UNC is able to value what it means for James, whose ancestors received no race-based advantages, to make himself competitive for admission to a flagship school nevertheless. Moreover, recognizing this aspect of James’s story does not preclude UNC from valuing John’s legacy or any obstacles that his story reflects.

So, to repeat: UNC’s program permits, but does not require, admissions officers to value both John’s and James’s love for their State, their high schools’ rigor, and whether either has overcome obstacles that are indicative of their “persistence of commitment.” It permits, but does not require, them to value John’s identity as a child of UNC alumni (or, perhaps, if things had turned out differently, as a first-generation White student from Appalachia whose family struggled to make ends meet during the Great Recession). And it permits, but does not require, them to value James’s race—not in the abstract, but as an element of who he is, no less than his love for his State, his high school courses, and the obstacles he has overcome.

Understood properly, then, what SFFA caricatures as an unfair race-based preference cashes out, in a holistic system, to a personalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth plus all that has happened to them since. It ensures a full accounting of everything that bears on the individual’s resilience and likelihood of enhancing the UNC campus. It also forecasts his potential for entering the wider world upon graduation and making a meaningful contribution to the larger, collective, societal goal that the Equal Protection Clause embodies (its guarantee that the United States of America offers genuinely equal treatment to every person, regardless of race).

Furthermore, and importantly, the fact that UNC’s holistic process ensures a full accounting makes it far from clear that any particular applicant of color will finish ahead of any particular non-minority applicant. For example, as the District Court found, a higher percentage of the most academically excellent in-state Black candidates (as SFFA’s expert defined academic excellence) were denied admission than similarly qualified White and Asian American applicants. That, if nothing else, is indicative of a genuinely holistic process; it is evidence that, both in theory and in practice, UNC recognizes that race—like any other aspect of a person—may bear on where both John and James start the admissions relay, but will not fully determine whether either eventually crosses the finish line.

III

A

The majority seems to think that race blindness solves the problem of race-based disadvantage. But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants like John and James will inevitably widen that gap, not narrow it. It will delay the day that every American has an equal opportunity to thrive, regardless of race.

SFFA similarly asks us to consider how much longer UNC will be able to justify considering race in its admissions process. Whatever the answer to that question was yesterday, today’s decision will undoubtedly extend the duration of our country’s need for such race consciousness, because the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society (the closure of which today’s decision will forestall).

To be sure, while the gaps are stubborn and pernicious, Black people, and other minorities, have generally been doing better. But those improvements have only been made possible because institutions like UNC have been willing to grapple forthrightly with the burdens of history. SFFA’s complaint about the “indefinite” use of race-conscious admissions programs, then, is a non sequitur. These programs respond to deep-rooted, objectively measurable problems; their definite end will be when we succeed, together, in solving those problems.

Accordingly, while there are many perversities of today’s judgment, the majority’s failure to recognize that programs like UNC’s carry with them the seeds of their own destruction is surely one of them. The ultimate goal of recognizing James’s full story and (potentially) admitting him to UNC is to give him the necessary tools to contribute to closing the equity gaps discussed in Part I, supra, so that he, his progeny—and therefore all Americans—can compete without race mattering in the future. That intergenerational project is undeniably a worthy one.

In addition, and notably, that end is not fully achieved just because James is admitted. Schools properly care about preventing racial isolation on campus because research shows that it matters for students’ ability to learn and succeed while in college if they live and work with at least some other people who look like them and are likely to have similar experiences related to that shared characteristic. Equally critical, UNC’s program ensures that students who don’t share the same stories (like John and James) will interact in classes and on campus, and will thereby come to understand each other’s stories, which amici tell us improves cognitive abilities and critical-thinking skills, reduces prejudice, and better prepares students for postgraduate life.

Beyond campus, the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. 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. Studies also confirm what common sense counsels: Closing wealth disparities through programs like UNC’s—which, beyond diversifying the medical profession, open doors to every sort of opportunity—helps address the aforementioned health disparities (in the long run) as well.

Do not miss the point that ensuring a diverse student body in higher education helps everyone, not just those who, due to their race, have directly inherited distinct disadvantages with respect to their health, wealth, and wellbeing. Amici explain that students of every race will come to have a greater appreciation and understanding of civic virtue, democratic values, and our country’s commitment to equality. The larger economy benefits, too: When it comes down to the brass tacks of dollars and cents, ensuring diversity will, if permitted to work, help save hundreds of billions of dollars annually (by conservative estimates).

Thus, we should be celebrating the fact that UNC, once a stronghold of Jim Crow, has now come to understand this. The flagship educational institution of a former Confederate State has embraced its constitutional obligation to afford genuine equal protection to applicants, and, by extension, to the broader polity that its students will serve after graduation. Surely that is progress for a university that once engaged in the kind of patently offensive race-dominated admissions process that the majority decries.

With its holistic review process, UNC now treats race as merely one aspect of an applicant’s life, when race played a totalizing, all-encompassing, and singularly determinative role for applicants like James for most of this country’s history: No matter what else was true about him, being Black meant he had no shot at getting in (the ultimate race-linked uneven playing field). Holistic programs like UNC’s reflect the reality that Black students have only relatively recently been permitted to get into the admissions game at all. Such programs also reflect universities’ clear-eyed optimism that, one day, race will no longer matter.

So much upside. Universal benefits ensue from holistic admissions programs that allow consideration of all factors material to merit (including race), and that thereby facilitate diverse student populations. Once trained, those UNC students who have thrived in the university’s diverse learning environment are well equipped to make lasting contributions in a variety of realms and with a variety of colleagues, which, in turn, will steadily decrease the salience of race for future generations. Fortunately, UNC and other institutions of higher learning are already on this beneficial path. In fact, all that they have needed to continue moving this country forward (toward full achievement of our Nation’s founding promises) is for this Court to get out of the way and let them do their jobs. To our great detriment, the majority cannot bring itself to do so.

B

The overarching reason the majority gives for becoming an impediment to racial progress—that its own conception of the Fourteenth Amendment’s Equal Protection Clause leaves it no other option—has a wholly self-referential, two-dimensional flatness. The majority and concurring opinions rehearse this Court’s idealistic vision of racial equality, from Brown forward, with appropriate lament for past indiscretions. See, e.g., ante, at 11. But the race-linked gaps that the law (aided by this Court) previously founded and fostered—which indisputably define our present reality—are strangely absent and do not seem to matter.

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. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.

No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.

The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans. It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.

* * *

As the Civil War neared its conclusion, General William T. Sherman and Secretary of War Edwin Stanton convened a meeting of Black leaders in Savannah, Georgia. During the meeting, someone asked Garrison Frazier, the group’s spokesperson, what “freedom” meant to him. He answered, “‘placing us where we could reap the fruit of our own labor, and take care of ourselves . . . to have land, and turn it and till it by our own labor.’”

Today’s gaps exist because that freedom was denied far longer than it was ever afforded. Therefore, as Justice Sotomayor correctly and amply explains, UNC’s holistic review program pursues a righteous end—legitimate “‘because it is defined by the Constitution itself. The end is the maintenance of freedom.’” Jones v. Alfred H. Mayer Co., 392 U. S. 409, 443–444 (1968) (quoting Cong. Globe, 39th Cong., 1st Sess., 1118 (1866) (Rep. Wilson)).

Viewed from this perspective, beleaguered admissions programs such as UNC’s are not pursuing a patently unfair, ends-justified ideal of a multiracial democracy at all. Instead, they are engaged in an earnest effort to secure a more functional one. The admissions rubrics they have constructed now recognize that an individual’s “merit”—his ability to succeed in an institute of higher learning and ultimately contribute something to our society—cannot be fully determined without understanding that individual in full. There are no special favorites here.

UNC has thus built a review process that more accurately assesses merit than most of the admissions programs that have existed since this country’s founding. Moreover, in so doing, universities like UNC create pathways to upward mobility for long excluded and historically disempowered racial groups. Our Nation’s history more than justifies this course of action. And our present reality indisputably establishes that such programs are still needed—for the general public good—because after centuries of state-sanctioned (and enacted) race discrimination, the aforementioned intergenerational race-based gaps in health, wealth, and well-being stubbornly persist.

Rather than leaving well enough alone, today, the majority is having none of it. Turning back the clock (to a time before the legal arguments and evidence establishing the soundness of UNC’s holistic admissions approach existed), the Court indulges those who either do not know our Nation’s history or long to repeat it. Simply put, the race-blind admissions stance the Court mandates from this day forward is unmoored from critical real-life circumstances. Thus, the Court’s meddling not only arrests the noble generational project that America’s universities are attempting, it also launches, in effect, a dismally misinformed sociological experiment.

Time will reveal the results. Yet the Court’s own missteps are now both eternally memorialized and excruciatingly plain. For one thing—based, apparently, on nothing more than Justice Powell’s initial say so—it drastically discounts the primary reason that the racial-diversity objectives it excoriates are needed, consigning race-related historical happenings to the Court’s own analytical dustbin. Also, by latching onto arbitrary timelines and professing insecurity about missing metrics, the Court sidesteps unrefuted proof of the compelling benefits of holistic admissions programs that factor in race (hard to do, for there is plenty), simply proceeding as if no such evidence exists. Then, ultimately, the Court surges to vindicate equality, but Don Quixote style—pitifully perceiving itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled and will hamper the best judgments of our world-class educational institutions about who they need to bring onto their campuses right now to benefit every American, no matter their race.

The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore). It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.

https://www.thenation.com/article/society/what-the-media-is-missing-about-the-supreme-courts-affirmative-action-ruling/

Society

The White Media Has Missed a Key Part of the Affirmative Action Ruling

 
The upshot isn’t just that colleges must end affirmative action but that they’ll have to cut Black enrollment to avoid lawsuits questioning their compliance with the decision.

 
by Elie Mystal
July 12, 2023
The Nation

“The affirmative action ban is not race-neutral; it’s anti-Black. And that is precisely how people like Roberts and Miller intend to apply their new rules.”

—Elie Mystal

 

PHOTO:  Students enter the Admissions Building on the campus of Harvard University in Cambridge, Mass. (Glen Cooper / Getty Images)

The Supreme Court’s decision in Students for Fair Admissions v. Harvard, the case banning race consciousness in college admissions, is facially unenforceable. That’s an underreported aspect of Chief Justice John Roberts’s gobbledygook ruling, mainly because most of the white people doing the reporting have adopted the gospel of “race-neutral” and “color blindness” without giving those concepts a whole lot of critical thought. But humans cannot retroactively make themselves unaware of race. People cannot un-conscious themselves, and ordering them to not think about race just ensures that they will. (In her dissent, Justice Ketanji Brown Jackson called it a “classic pink-elephant paradox.”) The court expects college admissions officers to know about the race of their applicants, and not care, but there’s really not going to be any way to tell if colleges are disregarding the precise bit of information the court wants them to. 

As a result, the real upshot of the affirmative action ruling is this: Colleges and universities must now punish Black applicants by decreasing the enrollment of Black students, by any means necessary. That’s because the only way universities can show compliance with Roberts’s new rules is to show that they’ve decreased the number of Black kids they let into school. Anything less than that will likely trigger litigation from the white supremacists who have already promised to hunt down schools that admit too many Black people, as determined by their own white-makes-right accounting system.

This intended revival of segregationist educational opportunities flows directly from the sheer hubris of Roberts’s attempt to legislate how admissions officers think, along with his open threats to universities that do not comply with his version of thought-policing. In his decision, Roberts expects that colleges and universities will be responsible for self-enforcing his ruling, but he also warns them that additional litigation will be coming their way if they try a work-around to achieve racial diversity in their classes. Again, the white media has made a big deal about the part of Roberts’s ruling where he says that colleges can still consider how race has affected an applicant (for instance, as described in a college essay), but they’ve ignored the last lines of his ruling where he specifically threatens schools that use those very essays to achieve racial diversity.

Roberts writes:

But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today…. “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.”… A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.

I’s sho hopes Massa Roberts thinks I is a good Negro wit the determination to keeps learnin’ my letters at the fancy school.

Roberts’s closing flourish here is trash on many levels. First of all, I don’t recall anyone appointing him as the chief judge for how Black people are supposed to overcome racial discrimination. Second, I’d argue that college admissions officers should pay special attention to applicants who didn’t fully overcome the hurdles white people put in their way, but might do so in the future. And third, Roberts’s paean to model minorities is still a white man’s wishes disguised as a legal remedy: How in the hell will Roberts know if some essay reader saw “courage and determination” in an applicant? How can Roberts possibly know what constitutes a unique contribution to a university, and how can Roberts place himself in a position to second-guess what the admissions officers on the ground think are worthwhile contributions? 

Most important of all, how can Roberts, or anybody else, know if universities are following his rules? Roberts doesn’t tell us outright, but he sure drops a powerful hint. In his decision, he effectively accuses Harvard of using a backdoor quota system to maintain a consistent rate of Black students. He writes: “For the admitted classes [at Harvard] of 2009 to 2018, black students represented a tight band of 10.0%-11.7% of the admitted pool.” He adds in a footnote: “Harvard must use precise racial preferences year in and year out to maintain the unyielding demographic composition of its class.”

Even if you think Roberts is right (and I’ll point out that Roberts offered no evidence that Harvard “must” be using precise racial preferences to achieve this kind of diversity, nor did the trial court, whose presentation of facts was what Roberts was supposed to be bound by, instead of his own conglomeration of fact-free inferences), how will a school like Harvard prove, to Roberts’s satisfaction, that it is not using racial preferences in the future?

The answer: Only a decrease in Black enrollment is likely to satisfy Roberts. If Harvard maintains its class diversity, Roberts will accuse it of using racial preferences. If Harvard increases Black enrollment, Roberts will accuse it of using newly unconstitutional race-consciousness to promote Black applicants—beyond historical levels, he’ll likely say. Only a decrease in Black enrollment will satisfy Roberts’s unworkable standard of ignoring race. It doesn’t actually matter how Harvard goes about putting together its class: If this doesn’t produce Roberts’s desired outcome of decreasing Black enrollment, Roberts will accuse it of thinking about race.

Of course, Roberts doesn’t say by how much universities will have to decrease their Black enrollment to satisfy his new legal requirements. If he had, white media might actually have reported on this aspect of his ruling. Instead, Roberts can almost certainly rely on the efforts of outsourced goons to keep an eye on universities and sue them if too many Black kids get in. One goon squad leader in particular, Trump political adviser Stephen Miller, has already volunteered to do this work, and has basically said the quiet part aloud.

Miller is currently the head of some accursed nonprofit called “America First Legal,” and shortly after the ruling he released a video in which he explained that his organization sent threatening letters to 200 law schools. In the video, Miller said: “If they tried to violate, circumvent or bypass, subvert or otherwise program around that ruling, we are going to take them to court. We are going to hold them to account.” In the letter to Harvard Law School Dean John Manning, Miller warned him of “the consequences that you and your institution will face if you fail to comply with or attempt to circumvent the Court’s ruling.”

I guess it was nice for Miller to send a letter, since historically these “warnings” about the “consequences” of being too nice to Black people come in the form of burning crosses, but the upshot is the same. Miller is telling schools straight out that any attempt to maintain diversity will be met with costly litigation. And the only way Miller or anybody else can know if a school is not attempting to “bypass, subvert, or otherwise program around” the court’s ruling is if those schools manufacture a performative decrease in Black enrollment.

It is worth noting that nothing in Roberts’s ruling or Miller’s posturing requires universities to increase enrollment of AAPI students, the students these white-wing forces used to accomplish their agenda. Roberts was unconcerned that enrollment for AAPI students at Harvard also remained in a tight band (around 18 to 20 percent) for a decade, and his ruling does not require universities to increase that number. Miller is not threatening to sue schools if they don’t admit more AAPI students. As usual, the concerns of AAPI students are left wholly unaddressed by this ruling, a fact that some Asian Americans who have celebrated the decision seem to deliberately ignore. The point, for these people, is that Black enrollment goes down, not that AAPI enrollment goes up.

I don’t know how many Black people Miller or Roberts think should be enrolled in a college or university, but however many Black kids are enrolled right now is too much for them. The situation right now is the standard that all future litigation will be set against, and if schools don’t significantly decrease Black enrollment to the satisfaction of white supremacists, Stephen Miller will be coming, and John Roberts will have his back. Universities were not using a quota system before, but now they pretty much have to, with a Black enrollment number lower than it was before as the new hard cap.

Going forward, it will be beneficial for some Black students—any whose test scores are less than exemplary—to pass as white or “other” on their college or graduate school applications. That’s because colleges and universities are now disincentivized from extending an offer to anybody they have to report as “Black,” for fear of being sued for admitting too many.

The affirmative action ban is not race-neutral; it’s anti-Black. And that is precisely how people like Roberts and Miller intend to apply their new rules.

ABOUT THE AUTHOR:

 

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

 

 

“What’s Past is Prologue…"

All,

The rapacious onslaught of the structural, institutional, and systemic white supremacist doctrine and practice that rules this nation with an iron fist and relentless propaganda and its ongoing ferocious assault on the human, constitutional, and civil rights of African Americans as both citizens and human beings continues with absolutely no end in sight in the neofascist regime of the Trump administration. The contemptuous advocacy and support of such nefarious and fiercely racist reactionary public officials as the new confederate Attorney General Jeff Sessions and the multi-billionaire moron, religious fanatic, and incompetent administrative hack and Secretary of Education chief Betsy DeVos confirms this. Coupled with the age-old "divide and conquer" strategies created by the apartheid segregationist techniques of using Asian, ("white") Hispanics and white American students in a bizarre yet all too effective de facto "racial united front" to openly and covertly oppose and deny black students from effectively addressing the now 400 year tradition of whites being allowed to take direct advantage of the ongoing historical fact that blacks were via both very severe and even deadly physical coercion as well as the law were NOT ALLOWED to equally compete intellectually and physically on any level with whites or anyone else the U.S. political system and cultural mores deemed were cogenitally (by both "law" and "custom") were therefore "superior" to them is of course what is responsible for affirmative action being absolutely JUST AND NECESSARY in the first place.

Anyone with even half a brain or an iota of honesty knows this of course but in a lethal context where white supremacy is openly and covertly not only advocated and practiced but defended, supported, and protected by the deeply embedded and extremely powerful political, economic, cultural, and educational apparatus and its ruling institutions that directly determines who wins and who loses and why within this inherently ruthless discriminatory system.

Thus the oppressive actions taken by the current white supremacist and aggressively authoritarian government are consistent with a larger society that actually pretends that American slavery and institutional and structural apartheid (which contrary to popular belief not only still exists today but is in fact thriving) and its inextricably ongoing effects and consequences should not even be acknowledged let alone addressed and changed. But a societal reckoning is coming and soon on what these draconian rightwing policies actually mean and the radical political and ideological responses to them. This malevolent History has not only "been here before" but mot assuredly will "be here again." MAKE NO MISTAKE: this system and this society is as always hell bent on oppressing, controlling, exploiting, and/or destroying us--and then rationalizing and justifying it to themselves through lies and self delusion. This is what the os-called affirmative action is really all about and has always been about and we must not and shouldn't deceive ourselves otherwise. Stay tuned...

Kofi


All,

"We should never forget that everything Adolf Hitler did in Germany was legal"
--Dr. Martin Luther King, Jr., "Letter from a Birmingham Jail” April 16, 1963, Birmingham, Alabama

What the Federalist society is and represents is precisely what (actual) critical race theory as legal philosophy, ideological critique, and socially progressive activism in the actual real world of law, politics, and public policy was designed to confront, challenge, and overcome. That profound and all pervasive struggle continues as it has for the past 40 years now to openly fight and defeat the ruthless doctrine and practice of white supremacy and its structural, institutional and systemic companion and social, cultural, and economic foundation of capitalist political economy. This is what is known as Racial Capitalism which fundamentally defines and undergirds all ongoing colonial, neocolonial, postcolonial, and imperialist relations in the world today, and has been now in the so-called "Western world" (which includes North America) for the last 500 years. The Federalist Society is-- like the current far rightwing U.S. Supreme Court that constitutes its "legal" and "constitutional" superstructure in American society today--our avowed and eternal enemy in every single aspect of our lives where the equally pervasive social, cultural, and economic categories of race, gender, and sexual identity exist and continue to determine and overdetermine who and what we are in this larger society at all times whether we are aware and conscious of its massive reality or not. Stay tuned because like always since the 15th century we are at WAR with these relentlessly oppressive and utterly exploitive forces. Thus the law in this contemporary and historical context and how it is manipulated and controlled is the primary device and instrument that is used to whitewash, rationalize, defend, and LIE about how and why institutions like the Federalist society and the Supreme Court are routinely used to act as though the vile and lethal treatment that is meted out to us is justified because "the law" deems it so. This is in fact what the openly provocative and all too accurate phrase "we are living in a white supremacist police state" actually means...


Kofi


https://truthout.org/articles/the-federalist-society-just-won-its-40-year-war-on-affirmative-action/

News Analysis
Racial Justice

The Federalist Society Just Won Its 40-Year War on Affirmative Action

The opinions that killed affirmative action were written by six justices who all have ties to the Federalist Society.

by Michael Avery & Mark Brodin
July 8, 2023
Truthout

Guests in the audience await the arrival of U.S. Vice President Mike Pence during the Federalist Society's Executive Branch Review Conference at The Mayflower Hotel on April 25, 2023, in Washington, D.C. Drew Angerer / Getty Images

On June 29, the Supreme Court upheld a challenge to affirmative action at Harvard and the University of North Carolina and put an end to race-conscious measures to overcome discrimination. The Federalist Society, an ultra-conservative legal organization, was the central force behind this decision. In immediate terms, the opinions that killed affirmative action were written by the six justices who are or have been members of the Federalist Society, the conservative majority on the court. More significantly, the decision was based on precedents that Federalist Society lawyers had created over the past 40 years.


Chief Justice Roberts, long an opponent of affirmative action, wrote the opinion for the court in which all the conservative justices joined. Justices Thomas, Gorsuch and Kavanaugh wrote concurring opinions to articulate their individual concerns. Collectively they rejected diversity in education as a permissible justification for affirmative action, bemoaned the impact that race-conscious measures allegedly had on nonminority students, complained that the universities were engaged in stereotyping, and said that the universities’ lack of a logical end point to affirmative action was fatal because it ran contrary to Justice Sandra Day O’Connor’s arbitrary prediction in the 2003 Grutter case that affirmative action would no longer be necessary in 25 years.

Civil rights advocates had historically argued that overcoming the consequences of social discrimination, the gaps between minority and white people in wealth, income, health, education, housing, and other measures, justified race-conscious measures by the government to overcome the disparities. Indeed, undoing the continuing effects of racial discrimination by government and private actors over generations was the original rationale for affirmative action. But beginning in the 1980s, Federalist Society lawyers gradually convinced a majority of the justices to reject that position. After the Grutter decision, only diversity was recognized by the court as a legitimate goal of affirmative action. The decision in the Harvard/UNC cases finally took that off the table as well.

The opinions by the dissenting Justices Sotomayor, Jackson and Kagan describe a very different U.S. than their six colleagues pretend they are living in. The reader should peruse these opinions in their entirety. As Justice Sotomayor puts it, “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.” She weighs heavily “the central role that education plays in breaking the cycle of racial inequality.” She recounts the numerous race-conscious means the government has employed to overcome the effects of slavery and Jim Crow, going back to the Freedmen’s Bureau. “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”

Related Story:

Harvard University students hug during a protest outside of the Supreme Court on June 29, 2023.

Op-Ed
Racial Justice

I Saw the Importance of Affirmative Action at My Ivy League University Firsthand

Student activists led the fight for affirmative action decades ago. Let’s continue their struggle for racial equity.

by Kwolanne Felix
July 8, 2023
Truthout

Justice Jackson in turn recounts the history of government action that was designed to, and did, benefit the white race. These include the iconic programs of the New Deal and post-World War II eras that built the American middle class — most notably federal mortgage assistance and the GI Bill. The government’s extraordinary wealth-creating benefits (what Justice Jackson describes as “the greatest mass-based opportunity for wealth accumulation in American history”) went to white citizens, leaving people of color on the sidelines — the wide well-documented wealth gaps between white and Black families did not just happen. The court majority erases this history, just as concerted conservative efforts now seek to remove it from the textbooks.

“Today’s decision,” Justice Jackson predicts ironically, “will undoubtedly extend the duration of our country’s need for … race consciousness, because the justification for admissions programs that account for race is inseparable from the race-linked gaps in health, wealth, and well-being that still exist in our society (the closure of which today’s decision will forestall).”

For the dissenters, and so many of us, overcoming the effects of social discrimination is not only a permissible but also an essential goal of government. The response by Roberts, however, was simple: The court already said no to that.

From Enforcing to Attacking Affirmative Action

In the ‘60s, protestors on the streets of Birmingham and Selma, as well as leaders like Martin Luther King Jr., Malcolm X, Angela Davis and John Lewis, had moved previously hostile or indifferent political leaders to embrace their cause, first through the passage of the Civil Rights Act of 1964 and later through the Voting Rights Act.

But merely prohibiting racial discrimination, Black organizers and political leaders came to recognize, would not reverse the enduring consequences of slavery and Jim Crow. The notion of “affirmative action,” first articulated by President Kennedy in March 1961, early in his term, was designed to “wipe away the scars of centuries of egregious mistreatment,” as President Lyndon B. Johnson later put it. Initially focused on government contractors, it imposed nondiscrimination provisions and recruitment requirements, and over the years was expanded into education and other areas. Thus began the slow progress of minorities and women in the labor market, universities, and other areas of opportunity.

The Federalist Society was founded in 1981 by law students at elite schools who objected to what they perceived to be liberal predominance in education. With generous backing from conservative philanthropists, the society grew rapidly. The founders of the Federalist Society, who included David McIntosh, Steven G. Calabresi, Peter D. Keisler and Lee Liberman Otis, among others, had their sights on affirmative action since they were in college. As undergraduates, they sponsored a debate of the Yale Political Union on the topic: “Resolved: That Yale Should Abolish Affirmative Action.” Now-Justice Samuel Alito was a member of the Concerned Alumni of Princeton, opposed to the inclusion of women and minorities on campus.

When they graduated law school in the mid-’80s, Federalist Society leaders were hired as law clerks to important judges, as staffers in the White House and in the Office of Legal Policy (OLP) in the Department of Justice. The OLP lawyers drafted crucial policy memos attacking affirmative action. They ambitiously laid out the next 15 years of conservative retrenchment across a wide spectrum of legal issues in a key document, “Report to the Attorney General: The Constitution in the Year 2000.”

Affirmative action has always been one of the Federalist Society’s principal targets. Its lawyers have fought against race conscious policies through public campaigns, debates and presentations, articles and propaganda, ballot initiatives, capturing important government posts and litigation.

The Reagan administration was the launching pad for the campaign, and for the careers of many Federalist Society lawyers. Edwin Meese, initially counselor to the president, later attorney general, arranged for the recently graduated Federalist Society founders to get important positions in the White House and the Justice Department. There they sponsored debates and other programs in Washington, D.C., and other cities, and attracted conservative lawyers to join the group.

Influential Federalist Society figures in the Reagan administration included John Roberts, Samuel Alito and Clarence Thomas, who later joined Antonin Scalia on the Supreme Court; Carolyn Kuhl and Michael McConnell, who would be appointed as Court of Appeals judges by George W. Bush; Charles J. Cooper, director of the Office of Legal Counsel; T. Kenneth Cribb Jr., Meese’s counselor and later a member of the Board of Directors of the Federalist Society; Michael Carvin, later senior advisor to the Federalist Society Civil Rights Practice Group and a co-founder of The Center for Individual Rights; Linda Chavez, staff director at the U.S. Commission on Civil Rights in Reagan’s first term and later the founder and chairman of the Center for Equal Opportunity; and Roger Clegg, later the president and general counsel of the Center for Equal Opportunity.

The principal architect of the Reagan administration’s policies was William Bradford Reynolds, head of the Civil Rights Division of the Justice Department. Reynolds later became a member of the Federalist Society Board of Visitors. His actions as head of the Civil Rights Division, including sending warnings to local governments that any race-conscious programs would draw litigation from the Justice Department, were so controversial that in 1985 his nomination to the position of associate attorney general was rejected by the Republican-led Senate Judiciary Committee. Under Reynold’s leadership, the Justice Department for the first time sided with those opposed to civil rights, and fought to reverse the hard-fought advances in social justice achieved over the past decades.

Federalist Society lawyers were at the forefront of this transformation — including attacking affirmative action in the ’80s. Local 28 of the Sheet Metal Workers had, for example, long excluded nonwhites from membership. The federal government initially sued in 1971, but the union fought bitterly against any reforms in its practices, repeatedly appealing affirmative action orders from lower courts, and the case dragged on. When it finally reached the Supreme Court, however, Clarence Thomas and the Equal Employment Opportunity Commission (EEOC) turned against the minority workers, claiming the court’s order established a quota and offered benefits to minority workers who had not themselves been actual victims of discrimination — a Federalist Society dogma.

Thomas, now under attack for accepting hundreds of thousands of dollars’ worth of unreported gifts while a Justice of the Supreme Court, has long been the Federalist Society’s principal Black advocate against affirmative action. By his own admission a beneficiary of affirmative action in admission to Holy Cross College and Yale Law School, in the Reagan administration he was chairman of the EEOC from 1982 to 1990. He turned the EEOC away from systemic approaches to combating discrimination, rejected enforcement activities focused on actual goals and timetables, and ignored the use of tests and other screening devices disadvantageous to minorities. Instead, he focused merely on individual claims of discrimination, consistent with the Federalist Society axiom that discrimination was the product of a few “bad apples” in the workplace, not a systemic problem. Thomas cynically argued, “Law enforcement, not social engineering, was the proper mission of the agency.”

The Cases That Turned the Tide

The NAACP had filed suit in 1972 against the Alabama Public Safety Department, which had no Black state troopers in its 37-year history. The federal government joined the NAACP as a plaintiff in the case. After years of litigation and resistance from the defendant, Black people were still underrepresented in the officer ranks, and the district court finally entered an order requiring the promotion of one Black for each white Alabama state trooper promoted. In 1987, the United States changed sides and opposed that order. It argued that the district court was “holding innocent white state troopers hostage.” According to the Federalist Society lawyers, the real victims of discrimination were now white males.

The influence of the Federalist Society on the appointment of federal judges and Supreme Court justices is virtually unprecedented in our history.

In both those cases, the Supreme Court ruled against the Reagan administration. The tide was about to turn, however. One problem that had vexed civil rights advocates was that, due to seniority rules, minority employees who were hired after a history of segregation in a workplace were at greater risk of being laid off. The school board in Jackson, Michigan, tried to solve the problem by giving protection against layoffs to recently hired minority teachers. White teachers sued, claiming race discrimination. The Reagan administration filed a brief in Wygant v. Jackson Board of Education supporting the white teachers, arguing that the constitution should be “colorblind.” The white challengers won, and the protection for minority teachers was ruled unconstitutional in 1986.

1986 was thus the turnabout year for civil rights protections.

Further north, nonwhite employees in salmon canneries in Alaska had been discriminated against based on race. Their working conditions were atrocious. Justice Paul Stevens characterized them this way: “Some characteristics of the Alaska salmon industry described in this litigation — in particular, the segregation of housing and dining facilities and the stratification of jobs along racial and ethnic lines — bear an unsettling resemblance to aspects of a plantation economy.”

Yet in its 1989 opinion in Wards Cove Packing Co., Inc. v. Atonio, the court set an artificially high standard for proving discrimination on the basis of race, and ruled that the minority workers had not met it. The court justified its ruling on a purported fear of quotas, a frequent ruse used by Federalist Society lawyers to undermine affirmative action measures, and one unsupported by any evidence. In a rare move, Congress rejected the court’s narrowing of the landmark Civil Rights Act of 1964 by adopting a new Civil Rights Act of 1991, which expanded the protections to include, among other things, explicit prohibition of practices that had a disproportionate impact on minorities or women.

In these Reagan era cases, leading Federalist Society lawyers in the Justice Department, private practice and at so-called conservative public interest firms wrote the government’s briefs as well as briefs filed by amicus groups opposing affirmative action. They included Charles Fried, William Bradford Reynolds, Michael A. Carvin, Roger Clegg, Clint Bolick, Charles J. Cooper, Samuel A. Alito Jr. and Carolyn B. Kuhl.

One tactic that Federalist Society lawyers used was to push for the most difficult standard for affirmative action programs to be ruled constitutional: “strict scrutiny.” So difficult because under strict scrutiny governmental action must serve a “compelling” purpose. Under pressure from conservatives, the Supreme Court has defined only two interests as “compelling” for employing racial classifications: (1) remedying past intentional discrimination by the specific government body regulated by the classification; and (2) diversity, broadly defined, in education. The court pinned affirmative action’s future to the latter rationale, ignoring the more obvious justification relied on in other countries — the compelling need to undo the lingering effects of past discrimination, especially that perpetrated by the government.

By the 1980s, there had long been widespread and well documented discrimination against Black workers in the construction industry. Civil rights advocates began to persuade local and federal government bodies to create programs to overcome that discrimination. In 1983, the former capital of the Confederacy, Richmond, Virginia, adopted a plan that required contractors to give at least 30 percent of their subcontracts to minority business enterprises. The federal government similarly included in its contracts financial incentives to give subcontracts to minority businesses.

In a pair of cases, City of Richmond v. J.A. Croson, Co. (1989), and Adarand Constructors, Inc. v. Peña (1995), the Supreme Court ruled the programs unconstitutional. Federalist Society lawyers filed amicus briefs in both cases urging the court to adopt the strict scrutiny standard that killed the programs. In Croson, Federalist Society lawyers Charles Fried, solicitor general of the United States, and William Bradford Reynolds, deputy solicitor general, put the weight of the federal government behind the argument that “the standard of review applicable to remedial uses of race [should be] the same as the standard of review applicable to non-remedial uses of such criteria.” In other words, it doesn’t matter whether the court is reviewing racist policies of exclusion, or remedial policies to promote racial justice. In either case, the court would use the standard that can seldom be met — strict scrutiny. To apply that test is to dictate the demise of the program.


It is noteworthy that briefs filed in Adarand on behalf of the Associated General Contractors of America opposing any race-conscious remedy, were coauthored by Federalist Society lawyer John G. Roberts Jr., then with the firm of Hogan & Hartson in Washington, D.C. and now the chief justice of the Supreme Court.
 

Taking Aim at Diversity

Voluntary plans by government bodies to overcome discrimination have been a favorite target of Federalist Society lawyers. When John Roberts was a lawyer in the Justice Department in the Reagan administration, he took on what he described as “racial balancing” by federal agencies, drafting memos against affirmative action. Wielding his gavel as chief justice, he came down hard against such plans in his opinion for the court in Parents Involved in Community Schools v. Seattle School District No.1 (2007) with the “bumper sticker” phrase “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Seattle, Washington, and Jefferson County, Kentucky, had adopted voluntary plans that took race into account in assigning students to school, for the purpose of achieving greater integration. The plans were adopted in part to overcome segregation caused by racial discrimination in housing. Lead counsel for the parents challenging the plans was Federalist Society lawyer Harry J.F. Korrell. Paul D. Clement, a prominent Federalist Society lawyer, at the time solicitor general of the United States, filed an amicus brief challenging the plans on behalf of the federal government. Other Federalist Society lawyers filed amicus briefs on behalf of a variety of conservative groups.

Recognizing that previous cases had already rejected the “make-up-for-past-wrongs” rationale for affirmative action, the challengers aimed their sights on the only basis left — diversity. Federalist Society lawyers and their allies had bombarded the federal courts with briefs arguing that diversity was not a compelling government interest ever since Justice Powell first suggested it might be in 1978 in Regents of the University of California v. Bakke. The Supreme Court explicitly recognized diversity in higher education, broadly defined as “all factors that may contribute to student body diversity,” as a compelling interest that would pass the strict scrutiny test in 2003. Grutter v. Bollinger upheld the holistic affirmative action plan of Michigan Law School, while at the same time striking down the less nuanced plan of the College at the University of Michigan which awarded a flat number of points to all African American, Hispanic and Native American applicants.


In Parents Involved, the Federalist Society Justices — Roberts, Scalia, Thomas and Alito — limited diversity as a permissible justification for taking race into account to institutions of higher education. The school authorities in Parents Involved argued that “educational and broader socialization benefits flow from a racially diverse learning environment.” They were specifically seeking racial diversity, not the broader diversity defined in Grutter, and argued “it makes sense to promote that interest directly by relying on race alone.” Roberts rejected their arguments, insisting that seeking the racial balance of individual schools mirror the racial balance of the district as a whole was racial balancing “pure and simple,” an illegitimate goal in the view of conservatives. He warned that racial balancing would effectively assure that race would always be relevant in American life, as if it had magically become irrelevant.

Strikingly, Justice Thomas accused the dissenting justices, who argued for deference to the school officials’ opinions about what was necessary to achieve integration, of taking the same approach that the “segregationists” had taken in Brown v. Board of Education. Not surprisingly, no other member of the court sided with Thomas on this preposterous comparison, not even the other opponents of race conscious decision-making. Thomas claimed that the racial balancing programs of the school districts were motivated only by “an interest in classroom aesthetics and a hypersensitivity to elite sensibilities.” He echoed a common conservative criticism of affirmative action, that it is driven by the agenda of the liberal academic “elite,” notwithstanding that the plans struck down were those of local school authorities.

Federalist Society lawyers prominently argued against affirmative action in higher education admissions in all the leading cases of the past several years. The former vice chairman of the Federalist Society Civil Rights Practice Group, Michael Rosman, and prominent Federalist Society lawyer, Theodore Olson, represented Cheryl Hopwood and other white students who successfully challenged race-conscious selection at the University of Texas Law School in 1996. Rosman also represented the white students who challenged the practice at the University of Michigan in the Grutter case. Olson had been appointed solicitor general of the United States by President George W. Bush, and he and Brian W. Jones, a former vice chairman of the Federalist Society Civil Rights Practice Group, filed an amicus brief on behalf of the federal government opposing affirmative action in Grutter. Numerous other Federalist Society lawyers also filed amicus briefs challenging the program.


Federalist Society lawyers in the firm of Consovoy McCarthy LLC represented Abigail Fisher, a white plaintiff who challenged affirmative action at the University of Texas’s flagship school at Austin. They were supported by a flood of amicus briefs from Federalist Society lawyers. Recruited by anti-affirmative action deep-pocketed activist Edward Blum, the plaintiff and her lawyers challenged the holistic admissions process that counted race as one factor in the complex calculus, along the lines Justice Powell had suggested in Bakke. With nearly 30,000 applications per year, it was of course not possible to quantify the part played by one’s race in the final decisions. What is known is that only 58 Black applicants were admitted through this route. Justice Kennedy tellingly asked Fisher’s lawyer during oral argument: “If it’s so few minority admits, then what’s the problem?”

In June of 2013, the Supreme Court vacated the lower courts’ decisions in favor of the university. It sent the case back with instructions to apply a “searching and demanding” strict scrutiny to the race-conscious selection process. Writing separately, Justices Scalia and Thomas would have explicitly overturned Grutter and put an end to any weighing of race. Civil rights advocates feared they may have gotten their way.


Surprisingly, when the lower courts again ruled in favor of the University and the case returned to the Supreme Court in 2016, a slim four-to-three majority (the late Antonin Scalia’s seat was still not filled because Senate leader Mitch McConnell refused to take up President Obama’s choice, Merrick Garland) concluded that the university’s race-preference barely passed constitutional muster. So, the matter stood as the current Supreme Court term began in October 2022.
How the Federalist Society Calls the Shots


The Federalist Society marshaled all its rich resources to strike the fatal blow against affirmative action in the Harvard/UNC cases. Rather than bringing lawsuits on behalf of individual students, the lawyers sued on behalf of a nonprofit organization, Students for Fair Admission, Inc. (SFFA). This avoided the embarrassment that individual white plaintiffs could cause. In the University of Texas case, it wasn’t at all clear that Abigail Fisher was the victim of affirmative action so much as her less-than-stellar academic record. And at the end of the earlier Hopwood case, the district court explicitly found that the white plaintiffs were not qualified for admission to the University of Texas law school. Finding actual Asian American students willing to oppose programs that diversified their student bodies was also no doubt a challenge.

SFFA was incorporated in 2014 by Edward Blum, Abigail Fisher and Richard Fisher. Blum is a fellow at the right-wing American Enterprise Institute. SFFA had all of 47 members when it initially sued Harvard, including Asian Americans who had allegedly applied to and been rejected by the university. By 2017, it claimed approximately 20,000 members.

SFFA is represented by Federalist Society lawyers in Consovoy McCarthy PLLC, in Arlington, Virginia. The firm has employed many former clerks of Justice Clarence Thomas. Challenging affirmative action is not only an ideological imperative for these lawyers, it also pays well. From 2015, when they filed suit against Harvard, through 2020, the last year for which SFFA’s IRS Form 990 is available online, the firm billed and collected $5,835,945 in fees from SFFA. No doubt they have billed additional substantial sums in 2022 and 2023 for work in the Supreme Court. Lawyers for the NAACP and similar public interest groups representing the real victims of discrimination — minority students — do not make a fraction of that kind of money.

SFFA is funded by donations, including $1.5 million in 2018 from Donors Trust, $500,000 in 2019 from the Searle Freedom Trust, and $250,000 in 2019 from the Sarah Scaife Foundation. Donors Trust is a dark money vehicle that funnels hundreds of millions of dollars from anonymous conservative donors to groups that back their causes. Andy Kroll has called it the “dark-money ATM of the conservative movement.” It is a major donor to the Federalist Society. In addition to representing the plaintiffs in the Harvard and UNC cases, Federalist Society lawyers authored 26 of the 30 amicus briefs that were filed in support of SFFA in the Supreme Court.

The Federalist Society claims that it does not take positions on legal or public policy issues. Their literature states that repeatedly. We are to assume that the activities we’ve described above are merely those of individual members. That’s nonsense. What Federalist Society lawyers have done with respect to race and the law required sophisticated organization, sustained coordination and the channeling of huge resources, including dark money. That work was done under the umbrella of the Federalist Society, chronicled on its website, discussed at its meetings, spearheaded by its most prominent lawyers and funded by its patrons. According to its most recent annual report (2021), the society has over 100 lawyer chapters, over 200 student chapters, hosts nearly 1400 events in person each year, produces podcasts that are downloaded over 200,000 times per year, has its own film studio and has had over 16 million views on YouTube. The society spends over $17 million per year and has assets in excess of $35 million. Of paramount importance, anti-affirmative action litigation could not have been successful without the Federalist Society’s project of radically remaking the federal judiciary over the course of four Republican presidencies.

The influence of the Federalist Society on the appointment of federal judges and Supreme Court justices is virtually unprecedented in our history. Every Republican president since Reagan has had a Federalist Society member in the White House vetting judges. As a thought experiment, imagine the outcry from the right if Democratic presidents took their marching orders from the National Lawyers Guild or the American Civil Liberties Union.


The Federalist Society’s cynical insistence on a colorblind constitution flies in the face of contemporary American reality. Racism remains deeply ingrained in our society, as any attentive reader of a daily newspaper knows. Yet it’s no surprise that the current Supreme Court ruled in favor of the Federalist Society in the Harvard/UNC cases. These were Federalist Society lawyers arguing before Federalist Society judges, a scenario that is repeated often across the country. They attend Federalist Society conferences together, taking turns speaking at the dais, and the judges are wined and dined by friendly donors (as recently disclosed in the case of Clarence Thomas). The Federalist Society began with the goal to change the law by changing the judges. They have succeeded dramatically.


This is what makes the assault on affirmative action so extraordinary. When Thurgood Marshall orchestrated the challenge to school segregation in the decades leading up to the landmark decision in Brown v. Board of Education (the Justice Department of that time sided with the plaintiffs seeking integration), he did so before judges who were at best indifferent to the plight of Black Americans, and sometimes outright hostile. The Supreme Court was initially quite divided on the matter of overturning the infamous Plessy v. Ferguson precedent that legalized Jim Crow. It was only the death of Chief Justice Vinson and the skillful leadership of his successor, Earl Warren, that produced the unanimous pronouncement of Brown.

Not so for the Federalist Society lawyers who have now achieved their goal of ending efforts designed to keep open for minorities the university pipeline into politics, business, medicine, law, and other professions. (Interestingly, the one pipeline the court left open is through the military academies.) In effect, they had chosen the judges they appeared before, most importantly their six fellows on the court, much as gerrymandering now permits legislators to choose their voters, rather than the other way around.

The Effective End to Affirmative Action


The court’s decision in the Harvard and UNC cases will have a devastating and long-range impact. The concession offered by Roberts 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” is largely meaningless, as he follows it immediately by warning that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” Justice Sotomayor aptly describes this purported olive branch as “an attempt to put lipstick on a pig.” Given the history of dogged opposition to affirmative action by Roberts and the other Federalist Society justices, one cannot imagine any successful work-around that includes race-conscious elements.


Erwin Chemerinsky, dean of the Law School at the University of California at Berkeley, has stated, “In light of the long history of race discrimination, and current racial inequalities, considering race is essential to treating people equal. The profound impact of eliminating affirmative action is evident in states that have done so. After California adopted Proposition 209 in 1996, which eliminated affirmative action, the number of Black and Latinx freshmen at UCLA and Berkeley fell by 50 percent.” Professor Olympia Duhart, co-president of the Society of American Law Teachers, stated, “The Supreme Court’s decision in Students for Fair Admissions presents a dangerous threat to diversity and the still unfinished fight for racial justice. Prohibiting colleges and universities from considering race as one of many factors admissions officers consider will impair the racial and ethnic diversity of university and law school classrooms across the country.”

Only a return to the principle that race-conscious measures are not just permissible but necessary to overcome the effects of social discrimination will allow meaningful steps by the government to create a racially fair and just country. Justices Brennan, White, Marshall and Blackmun of the Supreme Court recognized this in their opinion in Bakke in 1978. We need judges with their keen awareness of the realities of American life back on the bench. To do that, we desperately need a counter to the Federalist Society’s overblown influence on law and public policy.

 

ABOUT THE AUTHORS:

Michael Avery is professor emeritus at Suffolk Law School in Boston and coauthor with Danielled McLaughlin of The Federalist Society: How Conservatives Took the Law Back From Liberals.

Mark Brodin is professor and Lee Distinguished Scholar at Boston College Law School, and the author of numerous books and law journal articles.


PHOTO: Guests in the audience await the arrival of U.S. Vice President Mike Pence during the Federalist Society's Executive Branch Review Conference at The Mayflower Hotel on April 25, 2023, in Washington, D.C. Drew Angerer / Getty Images


BREAKING NEWS


The Trump administration will urge schools and colleges to ignore race in admissions, reversing an Obama-era guideline meant to bolster diversity

Tuesday, July 3, 2018

The Supreme Court has steadily narrowed the ways that schools can consider race when trying to diversify their student bodies. But it has not banned the practice.


Read More »


https://www.nytimes.com/…/trump-affirmative-action-race-sch…

Trump Administration Reverses Obama on Affirmative Action

VIDEO: The Trump administration has reversed an Obama-era policy that urged universities to consider race as a factor in admissions. In this video, we look back at the decades-long history of affirmative action and how it has changed. Published On August 3, 2017. Credit Image by Laura Segall for The New York Times

https://nyti.ms/47tzbuu

by Erica L. Green, Matt Apuzzo and Katie Benner
July 3, 2018
New York Times

WASHINGTON — The Trump administration will encourage the nation’s school superintendents and college presidents to adopt race-blind admissions standards, abandoning an Obama administration policy that called on universities to consider race as a factor in diversifying their campuses, Trump administration officials said.

Last November, Attorney General Jeff Sessions asked the Justice Department to re-evaluate past policies that he believed pushed the department to act beyond what the law, the Constitution and the Supreme Court had required, Devin M. O’Malley, a Justice Department spokesman said. As part of that process, the Justice Department rescinded seven policy guidances from the Education Department’s civil rights division on Tuesday.

“The executive branch cannot circumvent Congress or the courts by creating guidance that goes beyond the law and — in some instances — stays on the books for decades,” Mr. O’Malley said.

The Supreme Court has steadily narrowed the ways that schools can consider race when trying to diversify their student bodies. But it has not banned the practice.

Now, affirmative action is at a crossroads. The Trump administration is moving against any use of race as a measurement of diversity in education. And the retirement of Justice Anthony M. Kennedy at the end of this month will leave the court without its swing vote on affirmative action and allow President Trump to nominate a justice opposed to a policy that for decades has tried to integrate elite educational institutions.

A highly anticipated case is pitting Harvard against Asian-American students who say one of the nation’s most prestigious institutions has systematically excluded some Asian-American applicants to maintain slots for students of other races. That case is clearly aimed at the Supreme Court.

“The whole issue of using race in education is being looked at with a new eye in light of the fact that it’s not just white students being discriminated against, but Asians and others as well,” said Roger Clegg, president and general counsel of the conservative Center for Equal Opportunity. “As the demographics of the country change, it becomes more and more problematic.”

The Obama administration believed that students benefit from being surrounded by diverse classmates, so in 2011, the administration offered schools a potential road map to establishing affirmative action policies that could withstand legal scrutiny. The guidance was controversial at the time that it was issued, for its far-reaching interpretation of the law. Justice officials said that pages of hypothetical scenarios offered in the guidance were particularly problematic, as they clearly bent the law to specific policy preferences.

In a pair of policy guidance documents, the Obama Education and Justice departments told elementary and secondary schools and college campuses to use “the compelling interests” established by the court to achieve diversity. They concluded that the Supreme Court “has made clear such steps can include taking account of the race of individual students in a narrowly tailored manner.”

The Trump administration’s decisions on Tuesday brought government policy back to the George W. Bush administration guidances. The Trump administration did not formally reissue Bush-era guidance on race-based admissions, but, in recent days, officials did repost a Bush administration affirmative action policy document online.

That document states, “The Department of Education strongly encourages the use of race-neutral methods for assigning students to elementary and secondary schools.”

For the past several years, that document had been replaced by a note declaring that the policy had been withdrawn. The Bush policy is now published in full, with no note attached. It reaffirmed its view in 2016 after a Supreme Court ruling that said that schools could consider race as one factor among many.

In that case, Fisher v. University of Texas at Austin, a white woman claimed she was denied admission because of her race, in part because the university had a program that admitted significant numbers of minorities who ranked in the top 10 percent of their class.

“It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity,” Justice Kennedy wrote for the 4-3 majority.


The Trump administration’s plan would scrap the existing policies and encourage schools not to consider race at all. The new policy would not have the force of law, but it amounts to the official view of the federal government. School officials who keep their admissions policies intact would do so knowing that they could face a Justice Department investigation or lawsuit, or lose federal funding from the Education Department.

A senior Justice Department official pushed back against the idea that these decisions are about rolling back protections for minorities. He said they are hewing the department closer to the letter of the law.

He noted that rolling back guidance is not the same thing as a change of law, so that the decision to rescind technically would not have a legal effect on how the government defends or challenges affirmative-action related issues.

The move comes at a moment when conservatives see an opportunity to dismantle affirmative action.

Attorney General Jeff Sessions has said his prosecutors will investigate and sue universities over discriminatory admissions policies. And the conservative-backed lawsuit against Harvard is being pushed by the same group, the Project on Fair Representation, that pressed Fisher.

Anurima Bhargava, who headed civil rights enforcement in schools for the Justice Department under President Barack Obama and co-authored the Obama-era guidance, said that the policy withdrawal was timed for brief filings in the Harvard litigation, due at the end of the month.

“This is a wholly political attack,” Ms. Bhargava said. “And our schools are the place where our communities come together, so our schools have to continue to promote diversity and address segregation, as the U.S. Constitution demands.”


“It’s part of a broader conservative effort to undermine affirmative action,” said Samuel Bagenstos, a University of Michigan law professor and former Justice Department civil rights lawyer. “It’s something Republican administrations have been doing since Reagan.”

On Friday, the Education Department began laying the groundwork for the guidance decision. It restored on its civil rights website the Bush-era guidance, which had been shuttered by the Obama administration, signaling a shift of the Education Department’s stance on affirmative action, according to a person with knowledge of the decision.

A spokeswoman for the Education Department did not respond to repeated inquiries for comment.

But the policy shift comes as no surprise to civil rights advocates, who say it is only the latest measure by the Trump administration to dismantle policies aimed at protecting children and minority communities.

“There’s no reason to rethink or reconsider this, as the Supreme Court is the highest court in the land and has spoken on this issue,” said Catherine Lhamon, the former head of the department’s office for civil rights under Obama. “The Supreme Court has been unequivocal about the value of diversity and the core of achieving it, because it reflects the America. To retreat from those principles is damaging to the fabric of our country and to our students’ learning.”

Education Secretary Betsy DeVos actually has seemed hesitant to wade in on the fate of affirmative action policies that date back to a 57-year-old executive order by President John F. Kennedy, who recognized systemic and discriminatory disadvantages for women and minorities.

The Education Department did not partake in Justice Department’s formal interest in Harvard’s litigation.

“I think this has been a question before the courts and the courts have opined,” Ms. DeVos told The Associated Press. “I think the bottom line here is that we want an environment where all students have an opportunity, an equal opportunity to get a great education.”

But Ms. DeVos’s new head of civil rights may disagree.

Kenneth L. Marcus, who was confirmed last month in a party-line Senate vote, has been vocal in opposing affirmative action. Since his nomination, dozens of civil rights groups have raised alarms about Mr. Marcus’ record.

Under Mr. Marcus’ leadership as founder and president of The Louis D. Brandeis Center, a human rights organization that champions Jewish causes, the organization filed an amicus brief in 2012, the first time the Supreme Court heard the Fisher v. University of Texas at Austin. In the brief, the organization argued that “race conscious admission standards are unfair to individuals, and unhealthy for society at large.”

The organization argued that Asian-American students were particularly victimized by race “quotas,” that were once used to exclude Jewish people.

Conservative advocacy groups see the resurrection of the Bush-era guidance by the Education Department as a promising sign. Mr. Clegg of the Center for Equal Opportunity, said the Justice Department preserving the Obama-era guidance would be akin to “the F.B.I. issuing a document on how you can engage in racial profiling in a way where you won’t get caught.”

As the implications for affirmative action for college admissions plays out in court, it is unclear what the decision holds for elementary and secondary schools. New York City is embroiled in a debate about whether to change entrance criteria — currently a single test — into its most elite and prestigious high schools to allow for small increases in black and Latino students.

PHOTO: BILLIONAIRE MORON, RAGING INCOMPETENT, AND LOUSY DUPLICITOUS HACK, WHITE SUPREMACIST (And Secretary of Education chief) BETSY DE VOS

"What's Past is Prologue..."

https://www.vox.com/…/fisher-supreme-court-white-women-affi…


White women benefit most from affirmative action — and are among its fiercest opponents
by Victoria M. Massie@vmmassie
June 23, 2016
VOX

HISTORICAL UPDATE:

Editor’s note, June 29, 2023: The Supreme Court on Thursday effectively ended affirmative action in higher education in a pair of cases concerning admissions policies at Harvard and the University of North Carolina. Read our latest coverage here. The original story, on a separate 2016 case out of Texas, follows.

PHOTO: Jennifer Gratz was one of the first to successfully argue against race in affirmative action. Andrew Burton via Getty Images

The University of Texas Austin was Abigail Fisher's dream school. Fisher, from Sugar Land, Texas, a wealthy Houston suburb, earned a 3.59 GPA in high school and scored an 1180 on the SATs.

Not bad, but not enough for the highly selective UT Austin in fall 2008; Fisher's dreams were dashed when she was denied admission.

In response, Fisher sued. Her argument? That applicants of color, whose racial backgrounds were included as a component of the university's holistic review process, were less-qualified students and had displaced her.

Students graduating in the top 10 percent of any Texas high school are granted an automatic spot at UT Austin. Other students are evaluated through a holistic review process including a race-blind review of essays and creating a personal achievement score based on leadership potential, honors and awards, work experience, and special circumstances that include socioeconomic considerations such as race.

A few are accepted through provisional slots that include attending a summer program prior to the fall. One black student, four Latino students, and 42 white students with lower scores than Fisher were accepted under these terms. Also rejected were 168 African-American and Latino students with better scores than Fisher.

According to court documents, even if Fisher had received a perfect personal achievement score that included race (which, in itself, oversimplifies the admissions process), she still would not have necessarily qualified under UT's admission rubric.

In fact, when she applied for the class of 2012, the admission rate for non-automatic admits was more competitive than that of Harvard University.

Nonetheless, Fisher spent the past seven years in court, and Thursday the US Supreme Court ruled 4-3 that UT's admissions policy procedures are constitutional.

But the battle to erase race from the application review process for admission comes with an interesting paradox: "The primary beneficiaries of affirmative action have been Euro-American women," wrote Columbia University law professor Kimberlé Crenshaw for the University of Michigan Law Review in 2006.

A 1995 report by the California Senate Government Organization Committee found that white women held a majority of managerial jobs (57,250) compared with African Americans (10,500), Latinos (19,000), and Asian Americans (24,600) after the first two decades of affirmative action in the private sector. In 2015, a disproportionate representation of white women business owners set off concerns that New York state would not be able to bridge a racial gap among public contractors.

A 1995 report by the Department of Labor found that 6 million women overall had advances at their job that would not have been possible without affirmative action. The percentage of women physicians tripled between 1970 and 2002, from 7.6 percent to 25.2 percent, and in 2009 women were receiving a majority of bachelor's, master's, and doctoral degrees, according to the American Association of University Women. To be clear, these numbers include women of all races; however, breaking down affirmative action beneficiaries by race and gender seems to be rare in reported data.


Contrary to popular belief, affirmative action isn't just black. It's white, too. But affirmative action's white female faces are rarely at the center of the conversation.

Gender was a blind spot in the original affirmative action policy

Sex discrimination protections were not included when affirmative action policy was initially institutionalized in the 1960s.

The National Labor Relations Act in 1935 was one of the first federal documents to use the term "affirmative action" to correct unfair labor practices. While the Public Works Administration temporarily followed racially proportional hiring practices (which were dismantled at the end of World War II), it wasn't until President John F. Kennedy issued an executive order in 1961 requiring affirmative action to counter employment discrimination among federal contractors, with specific attention to race, that affirmative action was institutionalized.

In some ways, the narrow focus on "race" and "color" was the government's response to the demands of the burgeoning civil rights movement that brought racial discrimination front and center in America.

However, affirmative action was ambiguous, referring, at the very least, to federal contractors taking a step or gesture in opposition of discriminating against groups of people, but one of the limits of the order was that penalties were not enforceable.

Kennedy created a President's Committee on Equal Employment Opportunity to monitor the order, chaired by then–Vice President Lyndon B. Johnson.

However, it was not until October 1967, following pressure from the surging Women's Movement, that President Johnson amended an earlier order to include gender provisions. Further actions would be taken in 1973 and 1974 to address anti-discrimination protections for people with disabilities and Vietnam veterans, respectively.

White women have become some of affirmative action's fiercest opponents

In general, women today are more educated and make up more of the workforce than ever before, in part because of affirmative action policies. Indeed, from the tech industry to publishing, diversity has emerged as an overwhelming increase in the presence of white women, not necessarily people of color.

Incidentally, over the years white women have become some of affirmative action's most ardent opponents.

According to the 2014 Cooperative Congressional Election Study, nearly 70 percent of the 20,694 self-identified non-Hispanic white women surveyed either somewhat or strongly opposed affirmative action.

White women have also been the primary plaintiffs in the major Supreme Court affirmative action cases, with the exception of the first — Regents of the University of California v. Bakke in 1978 — that was brought to the courts by a white man.

Twenty-five years after Bakke found that race can be one but not the only criterion for evaluating admissions applications, four white women have filed lawsuits seeking retribution for admissions rejections based on the premise that they were denied a spot over less-deserving students of color.

The first successful case to challenge affirmative action policy was Hopwood v. Texas in 1996. Cheryl Hopwood claimed that despite excellent scores and fitting the profile of a surefire admit, the University of Texas School of Law admitted 62 people of color, only nine of whom had better LSAT and GPA scores than she did.

The Fifth Circuit Court of Appeals ruled that diversity alone was not enough to justify racial preferences. For example, only Mexican-American and African-American students' racial backgrounds were taken into consideration at UT's law school. The Supreme Court refused to hear the case, but the decision dismantled UT's earlier racial affirmative action policy and catalyzed UT's 10 percent policy to admit the best students in a state that still suffers from de facto segregation according to UT's Supreme Court briefs for the Fisher case.

But in 2003, two other white women approached the Court in parallel cases citing a misuse of race in admissions policies. In Grutter v. Bollinger, Barbara Grutter argued that she was denied admission to the University of Michigan Law School as a direct result of the law school's consideration of race in the admissions process. In Gratz v. Bollinger, Jennifer Gratz argued similarly that she was denied acceptance to the University of Michigan's flagship university in Ann Arbor as an undergrad because of race.

The Supreme Court decisions were split between the two cases. In Gratz, the justices ruled that race was being valued in ways that violated the Constitution's Equal Protection Clause — students received 20 points if they were from an underrepresented racial group compared with 5 points for artistic achievement. However, the justices ruled in Grutter that there was nothing unconstitutional about the way race was included in the law school's holistic admissions policy.

The primary distinction between the two decisions had to do with the weight given to race in affirmative action admissions policies. Nonetheless, Justice Sandra Day O'Connor had high hopes for such programs.

"We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," O'Connor wrote for the majority in Grutter.

Justice Anthony Kennedy, while recognizing the University's complex policy, reiterated O'Connor's sentiments in Fisher.


"The Court's affirmance of the University's admissions policy today does not necessarily mean the University may rely on that same policy without refinement," Kennedy wrote for the majority opinion. "It is the University's ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”

Racial affirmative action doesn't undermine merit

"I'm hoping that they'll completely take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and they work hard for it," Fisher told the New York Times in 2012.

But does race inherently undermine an admit's qualifications?

The question itself is dubious considering the fact that other forms of affirmative action, including gender, are rarely mentioned. The aforementioned CCES survey, which only asked about racial affirmative action, is just one example.

Yet it's a widespread assumption that even Justice Antonin Scalia brought to the fore last December during oral arguments for the Fisher case. He asserted that affirmative action hurts African-American students by putting them in elite institutions they are not prepared for. Study after study shows there's simply no evidence for the claim.

A look at the effects of affirmative action bans also suggests the idea is based on a false dichotomy. Since California passed Prop 209 in 1996 barring racial considerations for college admissions at public universities, UC Berkeley witnessed a significant drop in the number of black students, from 8 percent pre–Prop 209 to an average of 3.6 percent of the freshman class from 2006 to 2010.

But that drop isn't necessarily tied to underqualified students of color. Rather, 58 percent of black students admitted from 2006 to 2010 rejected Berkeley's offer of admission. Alumni, administrators, and current students noted that a possible reason could be a feeling of isolation, or lack of other students of color, at UC's flagship campus — an ironic consequence of the affirmative action ban.

Asian-American applicants also challenge the colorblind meritocracy myth. According to a sociological study in 2009, white applicants were three times more likely to be admitted to selective schools than Asian applicants with the exact same academic record. And a 2013 survey found that white adults in California deemphasize the importance of test scores when Asian Americans, whose average test scores are higher than white students, are considered.

Furthermore, existing race-neutral admissions policies like legacy admissions show that taking race out of the equation doesn't make admissions processes any more just.

According to a 2011 study by the Chronicle of Higher Education, a review of 30 elite universities' admissions processes found that a legacy connection gave an applicant a 23.3 percentage point advantage over a non-legacy applicant. For applicants who had a parent who was an alum, the average advantage was 45.5 percentage points.

Many college campuses, however, have historically had predominantly white student bodies — 84 percent of college students in the US were white in 1976 compared with only 60 percent in 2012 — which makes it far more likely that the beneficiaries of legacy admissions practices are white applicants like Fisher, whose sister and father went to UT Austin.

Fisher advocated for a colorblind, meritocratic admissions process for which she, as an individual, may still not have been qualified. But a look at the marginalized group that has most benefited from affirmative action shows that race was never a barrier for that group to begin with.

White women, like Fisher, stand as a testament to affirmative action's success. If anything, the dismantling of affirmative action is launched at people of color, but it affects white women, too. And the willingness to erase them from the story is part of the problem.

 

Affirmative Action | Patriot Act with Hasan Minhaj | Netflix Netflix Is A Joke

All,

This brilliant and bitterly HILARIOUS statement by Hasan Minaj is--and has always been-- one of the most profound, HONEST, ACCURATE AND ABSOLUTELY TRUE ANALYSES OF THE ACTUAL REALITY OF WHAT AFFIRMATIVE ACTION IS AND MEANS---AND WHAT IT ALWAYS WAS IN THE LARGER CONTEXT OF THE ENTIRE WARPED HISTORY OF THIS VIRULENTLY WHITE SUPREMACIST NATION .

SO THANK YOU HASAN. I laughed outloud in 2018 when you first aired this brilliant fucking TAKEDOWN of the massive racist FRAUD the "critical discourse" surrounding AA is and has always been and I'm laughing even harder at your deeply incisive and right on target exegesis through extremely bitter fucking tears five years later.

SHARE THIS BEAUTIFUL VIDEO WITH EVERYONE YOU KNOW...or just tell yourself and others a million more racist delusional LIES about what Affirmative Action actually is and means…

Kofi

VIDEO:  https://www.youtube.com/watch?v=zm5QVcTI2I8

"What's Past is Prologue..."

Affirmative Action | Patriot Act with Hasan Minhaj | Netflix

Netflix Is A Joke

October 28, 2018 

#HasanMinhaj #PatriotAct #Netflix

Hasan Minhaj breaks down the history of affirmative action, its impact on his experience with the modern education system, and how a recent lawsuit against Harvard that could go to the Supreme Court could change it forever.

VIDEO: