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June 25th, 2022

Insight

The Supreme Court Must Now End the 'Systemic Racism' of Affirmative Action

Josh Hammer

By Josh Hammer

Published Feb. 26, 2021

The  Supreme Court Must Now End the 'Systemic Racism' of Affirmative Action
As the nation's incipient racial reckoning following last May's killing of George Floyd morphed into the summer's riotous anarchy, the term "systemic racism" emerged as a fixture of our public discourse. What began as a somewhat arcane dialogue about purported police "militarization" and the "qualified immunity" legal doctrine soon took on a much more insidious tone. America, those like The New York Times' "1619 Project" fabulists told us, was rotten to its very core, blemished by the indelible taint of "systemic racism."

In reality, as many courageously pointed out amid unprecedented "cancel culture" headwinds seeking to stifle all dissent, there is no such thing as "systemic racism" that afflicts all of America's leading institutions. Despite the claim attaining mythological status, there is no factual basis to support it. There will, sadly, always be individual racists from all backgrounds and all walks of life, but American society in the 2020s simply does not have anything remotely resembling a legally enshrined regime under which its racial majority "systemically" oppresses its racial minorities. America in the year 2021 is not Germany in 1936; it is not South Africa in 1985; and it is not — after the Civil Rights Act of 1964 and the Voting Rights Act of 1965 — the Jim Crow South. This ought to be astoundingly obvious.

But while the notion of sprawling, multi-institutional "systemic racism" is a lie, there is at least one major American institution that does suffer from legally codified racism that tarnishes the institution's integrity, sullies its legitimacy and is so widespread that it might earnestly be dubbed "systemic." I speak, of course, of affirmative action admission policies in American higher education.

Thankfully, due to the petition for a writ of certiorari that was filed before the U.S. Supreme Court just this week in the case of Students for Fair Admissions v. Harvard College, the nightmarish systemic racism of affirmative action might finally end soon.

(As a disclosure, I personally know Students for Fair Admissions' attorneys, one of whom is now representing me before the U.S. Court of Appeals for the Fifth Circuit in unrelated litigation.)

There is at least some cause for optimism. A divided Court in 2016 upheld race-conscious university admissions policies in Fisher v. University of Texas, but the Court's composition has changed since then due to the successful Trump-era nominations of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

What's more, affirmative action is perhaps the single issue upon which infamous Republican-nominated disappointment Chief Justice John Roberts is the most reliable.

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In addition to his joining Justice Samuel Alito's dissent in Fisher, it was Roberts who, in the 2007 race-conscious education case of Parents Involved in Community Schools v. Seattle, penned perhaps his most iconic line: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." At a bare minimum, then, there should be four votes to grant the writ of certiorari and hear the case.

Affirmative action might have been devised as a well-intentioned effort to eradicate the vestiges of antebellum chattel slavery, but as Justice Clarence Thomas wrote in his 1995 concurrence in Adarand Constructors Inc. v. Pena, "Government sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice."

And discriminate Harvard does. The university maintains noxious de facto racial quotas to penalize Asian Americans, redolent of the anti-Jewish Ivy League quotas of the early 20th century. Harvard's lawyers conceded at trial that Asian Americans are penalized by the admissions office's nebulous "personal rating" category — and they are penalized simply for the fact of being Asian. The university engages in deliberate racial balancing, seeking to fill its incoming freshman classes with a largely preconceived, annually consistent racial breakdown.

Harvard's admission data are eye-opening. For high school applicants in the top academic decile of their class, whites are admitted at a rate of 15.3%; Asian Americans are admitted at a rate of 12.7%; Hispanics are admitted at a rate of 31.3%; and blacks are admitted at a rate of 56.1%. Poor refugees from Communist China and impoverished white students from Appalachia are thus placed at a "systemic" racial disadvantage relative to well-off Hispanics and blacks. In no rational universe is this a just arrangement.

Legal conservatives usually have myriad reasons for pessimism, but affirmative action could prove an exception. The justices have a real chance to deliver a grievous blow to the systemic racism that blights one of the nation's leading institutions.

Let's hope they don't blow it.

(COMMENT, BELOW)


Previously:
02/26/21 Politicized 'Science' Is Not Science at All
02/12/21 The Limits of 'Free Speech'
01/29/21 Populism's irony is not lost on the non-elietes
01/25/21 The Conservative Path Forward in the Biden-Harris Era
01/15/21 Trump's Parting Shot To China Should Be Full U.S. Recognition of Taiwan
12/31/20 It Can't Get Any Worse Than 2020. Here's a 2021 Political Wish List
12/18/20 Immigration Politics Went Away During COVID-19. It's Coming Back
12/11/20 Hunter Biden Saga Personifies Ruling Class Power and Conceit
12/04/20 There's No Stopping America's Political Realignment
11/13/20 Biden's Student Loan Forgiveness Plan Is Idiotic and Immoral
11/06/20 The Election Battle Is Just Beginning
10/30/20 The Closing Argument for the American Regime
10/23/20 How to Prepare for a Contested Election
10/16/20 Will Conservatives Finally Awaken to the Big Tech Threat?
10/09/20 Biden-Harris Would Deal a Huge Blow to Religious Liberty
10/02/20 The Do-or-Die Moment for the Trump Presidency
09/25/20 Republicans, Confirm a Supreme Court Justice Immediately
09/18/20 Where Does Never Trump Now Stand?
09/11/20 Where Is Joe Biden's Supreme Court List?
09/04/20 The Dems Hold the Nation Hostage
08/31/20 Trump and Netanyahu Debunk the Failed Consensus
08/21/20 Trump and Netanyahu debunk the failed consensus
08/06/20 High stakes of Americanists v. civilizational arsonists
07/31/20 The Crisis of the Conservative Legal Movement
07/24/20 The Ruling Class Has Sold Out the American People on Communist China
07/17/20 Intersectionality Vs. America
07/10/20 President Trump Emerges as Defender of the American Regime
07/03/20 How to Salvage a Pandemic Independence Day
06/26/20 This time the 'regime change' is BY Americans AGAINST America
06/12/20 How to Fall in Love With America Again
06/12/20 A Tale of Two Americas
06/05/20 Evil enforcers
05/28/20 Trump Is on the Ballot -- Not His Twitter Feed
05/22/20 Confronting the Chinese Communist Party Is America's Generational Challenge
05/15/20 The Case for Israeli Annexation
05/08/20 Will Trump stand with the voters who elected him, or will he shill for the elites who heap scorn upon him every day?
05/01/20 Bill de Blasio Highlights the Far Left's Jewish Problem
04/24/20 Will There Be Another Great Awakening?
04/17/20 Stop the Insane Coronavirus Jailbreaks
04/13/20 The American Media Hits Rock Bottom
04/03/20 The Moral Incoherence of Andrew Cuomo
03/27/20 Coronavirus Is Communist China's Chernobyl
03/20/20 How to Save a Presidency

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