Today the Supreme Court of the United States (“SCOTUS”) heard oral argument in Fisher v. University of Texas, Docket No. 11-345. Petitioner Abigail Fisher sued respondent University of Texas claiming Respondent’s race-based admissions policy* violated her Constitutional guarantee of equal protection, the Civil Rights Act of 1964 and various and sundry other statutes, rules and regulations.
In lawyer-speak, the question presented for SCOTUS review is “[w]hether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003) permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.”
In order to understand how Fisher ended up in front of SCOTUS this term, it is necessary to understand SCOTUS’ abysmal record of past decisions on the issue of race-based admissions policies. As SCOTUS specifically mentions it in its questions presented, let’s start with its Grutter decision, then hop around a bit.
Grutter held the University of Michigan Law School’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI [of the Civil Rights Act of 1964], or [42 U.S.C] §1981.”
Grutter is the twelve-toed, inbred lineal descendant of SCOTUS’ illogical Rube Goldberg “reasoning” in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Bakke was SCOTUS’ first real review of race-based admissions policies. In SCOTUS’ then liberal majority’s prevailing “do whatever it takes to advance the liberal agenda” wisdom, SCOTUS held “[t]he judgment below is affirmed insofar as it orders respondent’s admission to Davis and invalidates petitioner’s special admissions program, but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.”
The Bakke majority forbade University of California-Davis to use race as a super-special factor in admissions decisions, except when it really, truly needs to use race as a super-special factor in admissions decisions. SCOTUS provided no elucidation of when such circumstances may apply. The genius of the Bakke majority is its crystal clear logic, laying out a bright line test for permissible versus impermissible use of race in university admissions. In reality, all the Bakke majority did was to ensure the issue was indecipherable, necessitating countless more years of unnecessary and costly litigation with its “we’ll tell you when you’ve gone too far” test.
Without any guidance of any sort, the lower courts were forced to do the best they could with the Bakke majority’s unintelligible balancing test. Sooner or later some lower court was bound to irk SCOTUS’ liberal majority, requiring SCOTUS to elucidate its incomprehensible Bakke holding.
Sure enough, the United States Court of Appeals for the Fifth Circuit obliged, providing SCOTUS a reason to revisit its Bakke decision. In Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), the Fifth Circuit struck down the use of race as a factor in the University of Texas’ law school admissions policies, relying on the unassailable logic that if it is impermissible to deny Americans admission to universities primarily because of their race/skin color (Black/brownish), then it must be equally impermissible to deny Americans admission to universities primarily because of their race/skin color (Caucasian/pinkish) as a remedy for the unviersities’ earlier illegal behavior.
Out of Hopwood did Grutter rise, though the issue came before SCOTUS in a different though substantially similar vehicle. SCOTUS used the opportunity to reaffirm that it was hunky-dory for universities to blackball whites because of their race. No disparate impact analysis for Whitey. Adding insult to logic’s injury was Justice Sandra Day O’Connor’s (writing for the liberal majority) reliance on personal feelings and prognostication to announce:
It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. … We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Justice O’Connor’s statement, devoid of any basis in fact and law, may have done more to ruin SCOTUS’ reputation as a just arbiter of critically important and politically sensitive issues than any other decision SCOTUS issued between 1973’s Roe v. Wade and 2012’s National Federation of Independent Business v. Sebelius. Not only was America left with the horseshit, created out of whole cloth Bakke balancing test, but now America had a geezer telling us all this race stuff will sort itself out in not more than 25 years, which, conveniently enough will likely be well after Justice O’Connor takes the dirt nap.
Now that you’ve gotten a quick and boring education into SCOTUS’ race-based admissions policies jurisprudence, let’s go back to the top and spend a minute or two discussing Fisher and its importance.
Those whose livelihoods or political careers depend on damning America to a never-ending penitential ritual to absolve it from its past racial sins shriek that any SCOTUS decision holding race-based admissions policies unconstitutional is Second Coming of the Klan.
Nothing could be further from the truth. A SCOTUS decision striking down using race as a factor in admissions decisions would return America to its stated ideals. America believes that every citizen is guaranteed equal opportunity, not equal results.
In the interest of full disclosure, this topic is near and dear to ‘Puter’s heart. You see, ‘Puter was screwed over by race based admissions in his law school application process way back in the very early 1990s. ‘Puter applied to the University of Michigan and the University of Texas, and was not admitted for no other reason than the color of his skin and his sex. ‘Puter says this with confidence based on comparison of his undergraduate GPA and LSAT scores to the mean scores for all other races, ethnicities and genders, and all possible permutations thereof, which statistics were helpfully provided in the court filings in both the Grutter and Hopwood cases. Had ‘Puter been either female or a non-white male, ‘Puter was in the top 10% or higher of each grouping, except for white females, where he was in the top 25% of admittees.
Now, don’t feel bad for ‘Puter, as he’s done just fine. ‘Puter attended (thanks to your Volgi’s advice and prodding) a Top 20 law school on a full academic scholarship. However, knowing had Texas and Michigan’s admissions policies been based on merit and not on skin color, ‘Puter would have been admitted has always stung ‘Puter.
Screwing white male ‘Puter over, say many liberals and minorities, is simply a make up for the years of white males screwing over minorities and women. It’s fair to disadvantage white males now, no matter how qualified, in order to artificially advantage minorities as a make-up for decades if not centuries of Whitey T. Mann keeping women and minorities down.
This fundamentally flawed logic leads to the perverse result that the people actually responsible for racial discrimination against minorities get off Scotfree. Rather, liberals, including SCOTUS majorities in Bakke and Grutter, believe that punishing the innocent is a just remedy. This is Jim Crow turned on its head, and liberals should be deeply embarrassed to advocate openly in favor of government approved and enforced racial discrimination of any sort.
After all, ‘Puter never owned a slave. ‘Puter never drank from a whites-only drinking fountain. ‘Puter never attended a segregated school. ‘Puter has never benefited from racially discriminatory laws. ‘Puter has only known a world where the color of his skin places him at a decided disadvantage in interactions with government and universities.
Despite the indisputable fact that anyone born in this country after enactment of the Civil Rights Act of 1964 grew up in a world where racial discrimination was illegal, we privileged Gen Xers and Millennials, apparently, are the people that get to make up for our forbears undeniable wrongs. God forbid we ask the Boomers to suffer any ill consequences, despite the fact that many of them plainly benefitted from racial discrimination.
But still, even acknowledging our lack of culpability for the crimes of the past, self-righteous do-gooder zealots and race-baiting hucksters of all hues manage to convince quite some number of Americans that the only way to lift minorities up is to beat white males down.
It is ‘Puter’s fervent hope that the Supreme Court’s majority holds in Fisher that enough is enough. It is well past time to ban racial discrimination, even against whites.
Or, as Chief Justice Roberts has so eloquently stated, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
*N.B. In this post, “race-based” should be read as the current so-called affirmative action policy of excluding whites generally, and white males in particular, in favor of lesser qualified minority (primarily Black) applicant.
Always right, unless he isn’t, the infallible Ghettoputer F. X. Gormogons claims to be an in-law of the Volgi, although no one really believes this.
’Puter carefully follows economic and financial trends, legal affairs, and serves as the Gormogons’ financial and legal advisor. He successfully defended us against a lawsuit from a liquor distributor worth hundreds of thousands of dollars in unpaid deliveries of bootleg shandies.
The Geep has an IQ so high it is untestable and attempts to measure it have resulted in dangerously unstable results as well as injuries to researchers. Coincidentally, he publishes intelligence tests as a side gig.
His sarcasm is so highly developed it borders on the psychic, and he is often able to insult a person even before meeting them. ’Puter enjoys hunting small game with 000 slugs and punt guns, correcting homilies in real time at Mass, and undermining unions. ’Puter likes to wear a hockey mask and carry an axe into public campgrounds, where he bursts into people’s tents and screams. As you might expect, he has been shot several times but remains completely undeterred.
He assures us that his obsessive fawning over news stories involving women teachers sleeping with young students is not Freudian in any way, although he admits something similar once happened to him. Uniquely, ’Puter is unable to speak, read, or write Russian, but he is able to sing it fluently.
Geep joined the order in the mid-1980s. He arrived at the Castle door with dozens of steamer trunks and an inarticulate hissing creature of astonishingly low intelligence he calls “Sleestak.” Ghettoputer appears to make his wishes known to Sleestak, although no one is sure whether this is the result of complex sign language, expert body posture reading, or simply beating Sleestak with a rubber mallet.
‘Puter suggests the Czar suck it.