SCOTUS Ruling in 'Affirmative Action' Case Reveals How Little They Care About Constitution

P. Gardner Goldsmith | June 26, 2016
DONATE
Font Size

Hiding in the almost impenetrable shadow of the massive “Brexit” news is a US Supreme Court ruling that is not only important, but also reflects how far afield the members of the court and many US citizens have strayed from the original rationale for government embraced by most of the Founders.

On the 23rd, the justices ruled 4-3 against plaintiff Abigail Fisher’s suit objecting to the University of Texas’ “Holistic” race-based admissions policies. At first blush, people who stand for justice and equality under the law might find this reprehensible, but there are important nuances to this story that deserve attention.

First, let’s cover the less important points of this case – and in the end, we’ll see why they’re not as worrisome as the fact that the Supreme Court bothered to hear the case, and what the majority said.

The bulk of the U of T admissions policy in question was installed in 1997, in response to a previous lawsuit called Hopwood v. Texas, and adjusted in 2007. In the rules, the school must not consider race for applicants who scored in the top ten percent of those taking the Scholastic Aptitude Test (SAT) for the previous year. Below the top ten, race can be one of the many factors the admissions board takes into consideration.

In 2008, Abigail Fisher, a Texas resident and UT applicant who did not rank in the top ten percent of SAT scores for university applicants, was denied admission to the state tax-subsidized school. She sued in the US District Court for the Western District of Texas claiming that the UT rule considering race was an infringement of the Fourteenth Amendment of the US Constitution “Equal Protection Clause,” that it broke portions of the “Second Enforcement Act” as amended in 1983, and stood in opposition to Title VI of the 1964 Civil Rights Act. The lower courts found against her, and in 2012, she brought her case to the black-robed oracles at the US Supreme Court.

The result, as stated above, was that she lost the case, but in the loss, Ms. Fisher exposed a number of important cracks in the US legal system and in how people view the role of government.

First, we must establish that all of this analysis is of a state, tax-subsidized, college. As such, there are underlying moral problems of taxation, redistribution of wealth, price increases due to artificially stimulated demand, and the movement of useable capital away from areas where taxpayers would have spent it. The school also receives “federal aid”, as do many of its students – federal cash that is not supposed to go to either a state college or to students because it is not Congress’s money to give.

But beyond those major points, the very fact that the US Supreme Court heard this case is an error and reflects how warped the justices’ views of the Fourteenth Amendment and the role of the federal government have become.

The pertinent clause of the Fourteenth Amendment is the so-called “Equal Protection” clause. It forbids any state from denying "...any person within its jurisdiction the equal protection of the laws.” It was written, in most part, to make sure that states with laws punishing those who brought harm to white people also punished people who brought harm to black people.

But the justices, and most Americans, repeatedly misread that clause to mean “equal treatment” under the law - but, as much as one might wish the clause mandated equal treatment under the law, it does not, and there is a very important, and lost, historical reason for this.

When the Constitution was ratified, and during the prior decade under the Articles of Confederation, the rationale for the existence of government was primarily based on John Locke’s 17th century concept of “protection of rights.” The state, in its generic sense, was only supposed to exist to stop people from, or punish them for, threatening or harming the life or property of another.

It was not supposed to give things to people, for that entailed a clear act of theft on the part of the government in order to hand out the “beneficence.”

According to Locke, Jefferson, Paine, and others, protection against thieves was one of the reasons people established governments, so to have a government that engaged in thievery was tautological; it ran counter to its own raison d’etre.  Free market anarchist writers such as Lysander Spooner subsequently noted that even the so-called “police” power of government was a service that required tax thievery to fund, but that is another discussion.

In this UT case, one can see the wide berth many in the US populace and US Supreme Court give to the original “protection” rationale. No longer does government exist merely for “protection,” it exists to “give” people things. And when it does, it has to give things to them “equally” – even though the Constitution actually doesn’t say that. Under a strict reading of the Constitution, the justices should not have heard this case, because it is a state issue not connected to the Fourteenth Amendment. But they did, and, writing for the majority, Justice Anthony Kennedy soft-peddled the underlying racism of so-called "Affirmative Action", saying:

“A university is in large part defined by those ‘intangible qualities which are incapable of objective measurement but which make for greatness,’”

But what about the other laws, like the “Second Enforcement Act” as amended in 1983, and Title VI of the 1964 Civil Rights Act?

The 1983 amendment to the “Second Enforcement Act” is, in essence, a statutory form of the “Equal Protection Clause”, and sets certain parameters regarding injunctive relief for those suing states. As such, it is covered in the argument about equal protection.

And Title VI of the 1964 Civil Rights Act reads:

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

If one looks merely at what the government does, and not what it is Constitutionally restricted from doing, one would think that Ms. Fisher had a valid case. After all, she was being denied benefits of a school receiving Federal financial assistance. In 2013 alone, federal funds accounted for half of UTs research budget. The university system received $1.26 billion, but did not want to comply with the federal mandate from 1983, because the people running the school believed there were salutary reasons to partially judge someone’s admissibility on race.

But scholars at the Center for Individual Rights argue that racial discrimination as part of the admissions process often sees lower performance from those who receive preferential treatment, and writers at the Cato Institute note that racial preferences often stigmatize those of the “preferred race,” even if those students who entered the school based on high academic merit.

Proponents of such policies note that standardized tests such as the SAT are racially biased, resulting in lower scores for non-whites. As a result, they argue, preferential policies at the university level are needed.

But what does this have to do with the US government? That is the single, solitary question in this case. And the answer is:

Nothing.

Federal funding to colleges is not sanctioned by the US Constitution.

No “protection” is provided by the University of Texas, so neither the Fourteenth Amendment nor the 1983 amendment to the “Second Enforcement Act” apply.

Evidently, what applies is whatever the majority of the politically-appointed judges on the bench want to apply. This case, like most in the Supreme Court docket, reveals how little the justices and politicians care about the actual text or context of the US Constitution.

Based on their multitudinous reactions that have consistently avoided the core constitutional and moral tax issues, it appears many Americans also don’t care.

donate