Tuesday, October 23, 2018

Harvard case to end affirmative action?

An inflection point may be at hand.  For decades the U.S. Supreme Court has permitted the compromise of Constitutional equal protection rights to permit what can be broadly described as affirmative action.   The ongoing lawsuit by people of Asian ancestry against Harvard University’s admissions policies may well be the case that ends any consideration of race in education or employment.  If so, a broad social and political upheaval may occur as any form of race conscious government action is banned.

Students for Fair Admission (SFA) is pursuing a lawsuit against Harvard University contending that the admissions process discriminates against Americans of Asian descent contrary to the requirements of Title VI of the Civil Rights Act of 1964.  Title VI bans discrimination based on race, color, sex, religion or national origin. Title VI, and the associated Title VII that bans discrimination in employment, flow from equal protection rights contained within the U.S. Constitution.

About 100 years ago Harvard ended its tradition of admitting students based strictly on academic performance in favor of a holistic method that considered elements such as personality and geography.  This shift originally occurred in response to a perceived over representation of Jewish students.   The change in policy reduced the percentage of Jewish students from nearly 30 percent to 10 percent in short order.

Regardless of how the current case concludes, it inevitably will be appealed and potentially wind its way to the Supreme Court.  If it does unfold in this manner the case may well settle definitively what has been a building trend in the court against compromising the equal protection rights of one group to address past wrongs inflicted on members of another group.
 
In the aftermath of the civil rights movement and the passage of the Civil Rights Act of 1964 major transforming actions were ordered.  Chief among them was the desegregation of schools.   The impact of the order was not immediately as fruitful as expected in correcting long standing issues.  People of all races were not comfortable with sending their children to different schools.  Some courts ordered busing and other actions to bring about integration. 

The law failed to integrate college campuses.   In response, many colleges began voluntary affirmative action to attempt to raise the very low or even non-existent presence of minorities on their campuses.   Many colleges basically implemented programs to raise the number of minorities by establishing quotas and target percentage goals.  Student applicants that were qualified but rejected brought legal suits against colleges that employed these methods.

Regents of the Univ of California v Bakke was a 1978 U.S. Supreme Court case of primary significance in these suits.  The Court ruled in Bakke that there was a compelling state interest in promoting diversity in higher education.   The Court went to great lengths to state that race could be one of many considerations in building diversity but demanded strict scrutiny and narrow application.   It specifically ruled that quotas and any single consideration of race were unconstitutional.

This interpretation held sway with minor objection for many years and was reaffirmed in a 2003 case, Grutter v. Bollinger.  However, the Court is unsettled on this conflict with equal protection.  The roots of undoing affirmative action were clear in the non-majority decision in Bakke and the 5-4 decision of Grutter.   In Parents Involved in Community Schools v. Seattle School District No. 1 (2007) Chief Justice John Roberts said, ‘‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’’

In Ricci v Destefano (2009) the Supreme Court ruled in favor of 20 New Haven firefighters that claimed discrimination under Title VII of the Civil Rights Act of 1964 after the city declined to promote them despite their passing required tests.   The court ruled in their favor but did not address head on the conflict with equal protection.  Supreme Court Justice Antonin Scalia in a concurring opinion said the Court “merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”

The case of SFA v Harvard may well prove to be the case of reckoning on this issue.  In Grutter Justice Scalia said the college’s admissions policies, “show it to be a sham to cover a scheme of racially proportionate admissions.”  He would likely say the same of Harvard's policy of the 1920s and 2018.

Justice Clarence Thomas wrote in his Grutter opinion, “the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

The current makeup of the court – now dominated by textualist and originalist judicial philosophy - may indicate the probability the Court will take up the issue on appeal of SFA v Harvard is high.   Its decision in such a case may be led by Justice Clarence Thomas.  Thomas has throughout his judicial career adamantly opposed race-based affirmative action.

A narrow decision may rule that any form of consideration of race in admissions to higher education is unconstitutional.    Broader decisions may extend that judgement to employment and may even overturn the Court’s past judgement that there is a compelling state interest to promote diversity.

In a society seemingly obsessed with identity and diversity one cannot doubt that such a decision will have major repercussions.

Thursday, October 4, 2018

The Supreme Court’s Politicization – can we fix it?


The Republic is in a bind.  The nation is divided almost evenly from left to right.   The division over a generation has grown worse and infected the Supreme Court of the United States.  After the present confirmation process is completed there must be an effort to find a way to end this politicization of the Supreme Court and ensure that it remains the legitimate arbiter of the Constitution.

Article III of the U.S. Constitution states the “judicial power of the United States, shall be vested in one Supreme Court.”  Article II of the Constitution gives the President the power, “with the Advice and Consent of the Senate, … [to] appoint … Judges of the supreme Court.  The power imbued to the Supreme Court as the ultimate interpreter of the Constitution is uniquely American.
 
Before the Constitution was adopted there was great debate.  Alexander Hamilton wrote Federalist Paper No. 78 about the judicial power under the pen name Publius.  An opposing view was written in Brutus No. 15 by an unknown author.  Brutus’ overarching concern was that the Supreme Court, as ultimate authority of what the Constitution meant was unchecked due to its position and lifetime tenure of its members.  He said, “In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

Hamilton saw this state as a positive aspect of the Constitution.  He answered Brutus arguing that the independence and lifelong appointment would “secure a steady, upright, and impartial administration of the laws.”  He contended that the judiciary “will always be the least dangerous to the political rights of the Constitution” because it held no power of the purse (Legislative) or the sword (Executive).