Reflections on Affirmative Action | Ott Observations

Recently, the U.S. Supreme Court ruled that Affirmative Action is unconstitutional. 

For almost 50 years, this has been an admissions practice by universities, accepting minority student applicants who might not have the best academic achievements, toward creating a diverse student body reflecting the overall diversity in the U.S.

I have mixed feelings on this decision based on personal experience. 

I was recruited out of college to work for the DuPont Company. So was a young man named Stan. Stan is Black. We ended up living in the same apartment complex, playing sports and hanging out together on weekends. 

During one discussion over beers, Stan explained to me that when I get a promotion I know it is because of my work achievements, where as he has to wonder if it was just time to promote the Black guy.

Stan knew he probably wouldn’t have been hired without DuPont’s Affirmative Action plan. But there was a price to pay in never knowing if his performance measured up. 

My friendship with Stan showed me how pervasive prejudice and discrimination can be in denying opportunities, yet I also could see the flaws in how Affirmative Action worked.

It remains to be seen if we are ready to provide higher education opportunities without prejudice. Statistics prove that minorities have had much greater access to a college education than prior to the start of Affirmative Action, when college was primarily a White men’s club. In fact, White women have benefited as much as any minority category.

Former President Barack Obama and his wife Michelle are two examples, as are Supreme Court Justices Clarence Thomas and Sonia Sotomayor. Hopefully we won’t backslide.

My bigger issue is the feebleness of this court to make a compelling argument that justifies their decision. Like the Dobbs abortion decision, this court has overturned almost 50 years of precedent. There were multiple court challenges over the years where Affirmative Action was upheld. 

So what, specifically, has changed? What new context or insight does the court now possess?

One obvious change is that this court has been stocked with conservative ideologue justices by Mitch McConnell and Donald Trump. These justices complain about how cynically they are viewed and how low they rate in public opinion polls. 

But it is in their power to do something about it. The majority opinion has to make a reasoned and compelling argument explaining how this practice was constitutional for 50 years but is now not constitutional. 

To simply state that five decades of justices before them were wrong is arrogance – not a legal argument.

A good majority opinion would have also provided guidance for other admissions criteria and how this court would view their constitutionality. 

For example, many universities have “legacy” admissions. This means if your father and grandfather attended the university, then you automatically get in – even if you’re the village idiot.

Chief Justice Roberts suggested universities should look at this practice, but he did not send a clear signal that the court considered this discriminatory or unconstitutional.

Justice Roberts also wrote that having a diverse student body is a worthy goal as it enriches the educational environment, much like my friendship with Stan. Yet he offers no suggestions for how else to achieve diversity in a manner the court would approve. 

Comparing different situations in the context of law is how judges make decisions. So what different situations did they discuss to draw a new line in the sand? We don’t know, which leaves us to assume they didn’t examine this with rigor.

There was another aspect of this decision that further illustrates why the credibility of this court suffers in the eyes of so many people. 

Justice Jackson recused herself from the Harvard case because she currently serves on their board. This is what judges are supposed to do when they have a conflict of interest.

On the other hand, Justice Thomas has said he would not recuse himself from any cases stemming from the Jan. 6, 2021, attack of the U.S. Capitol. Yet, his wife was an active participant, involved in communication with the White House.

How does this not present a conflict of interest?

Like the Dobbs abortion decision, I give this Supreme Court another “F.” In both cases, it is not because of their decision. Instead, it is their failure to provide transparency to a rigorous decision-making process and resulting compelling line of reason. 

This would make it far easier to accept the societal upheaval triggered by reversing half a century of law. And it would go a long way toward achieving the respect and credibility these justices clearly crave.

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Bill Ott

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