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It is not premature to announce the death of Affirmative Action.  For some, Affirmative Action is on life support. However, for minorities, and specifically for Hispanic Americans, is not that the end of Affirmative Action in sight, rather that it is a fait accompli. For all purposes, the recent US Supreme Court ruling upholding its ban by the state of Michigan, sealed the coffin on Affirmative Action and widened the floodgates for other states to follow suit. https://www.insidehighered.com/news/2014/04/23/supreme-court-upholds-right-state-voters-bar-consideration-race-admissions  Http://appellate sixth court Michigan proposal 2


Some factors furthering the dismissal of Affirmative Action.

        The outlook of the majority of U.S. Supreme Court Justices constitute an important force behind the nation’s anti-Affirmative Action and anti-Diversity activism. Following, is a reflection on such outlook. For relevant court decisions see: http://www.ncsl.org/research/education/affirmative-action-court-decisions.aspx

For starters, there is the State’s right doctrine, which one can argue, takes front and center in informing decisions on Affirmative Action and Diversity by the Justices majority. Indeed, the application of this concept in their 6-2 ruling affirming the state of Michigan ban, known as Proposal 2, constitutes an incontrovertible example of the Justices leaning.. http://blogs.findlaw.com/decided/2014/04/mich-affirmative-action-ban-upheld-by-us-supreme-court.html. For Hispanic Americans this decision pattern is significant in that it strengthened the nation’s movements dismantling Affirmative Action and Diversity.

Moreover, the record shows the Justices added to their 6-2 ruling (4/22/2014), the opinion that the state of Michigan’s Proposal 2 did not violate the U.S. Constitution’s guarantee of equal protection. By inserting this opinion the Justices in effect shut the door on the possibility of any remedying action on the part of the federal courts. (See Justice Sotomayor dissenting discussion, below, and related discussion in http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

The higher Court use of the Strict Scrutiny doctrine may lead to rejection of diversity policies enacted by public colleges and universities because such institutions may find it difficult to satisfy the narrow limits imposed by the Supreme Court. – see: Aditi Mukherji, JD in Find Law on June 24, 2013 (insert “Strict scrutiny…” and Brett Snider, Esq, report, April 22, 2014 in:  also, http://blogs.findlaw.com/decided/2014/04/mich-affirmative-action-ban-upheld-by-us-supreme-court.html  and http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

In the view of some Justices, the states that may follow Michigan legislative ban, are likely to do so because of what the Court’s majority refers to as the “existing resentment on some parts of the public,”due to affirmative action and diversity practices. For Hispanic Americans this apparent sentiment among Court Justices is hard to swallow. It raises question about whether they are giving comfort to those in society seeking to dismantle the Affirmative Action and Diversity apparatus.

For Dismantling Affirmative Action and Diversity  

There is disagreement among legal scholars as to whether Affirmative Action practices constitute in fact illegal racial discrimination. But an active segment of the population legally challenges Affirmative Action as a form of reverse discrimination, one giving preference to historically marginalized groups, in order to address present inequalities. Within that active segment are individuals representing organizations legally challenging affirmative action who were quick to respond to the decision.

Among them is Roger Clegg, president of the Center for Equal Opportunity, CEO, who stated that he hoped the ruling would lead other states to follow Michigan: “Where ballot initiatives are not available, state legislatures should act; where state legislatures won’t act, then action should be taken at the local level”. Clegg made reference to a coauthored paper published by the Heritage Foundation that discusses such legislation. That paper can be found at: http://www.heritage.org/research/reports/2014/02/what-states-can-do-to-stop-racial-discrimination. He asserted: “CEO studies helped lead to the passage of Michigan’s Proposal 2…”

Another opponent, is the Chairperson of the Center for Equal Opportunity, Linda Chavez, who quickly praised the Court’s action: “This is a welcome decision, and in fact any other outcome would be been ridiculous. The Center for Equal Opportunity hopes that all states will join Michigan and the other states that have already banned preferences and discrimination – and that Congress will do so as well.”  See more at: http://www.ceousa.org/about-ceo/press-center/790-center-for-equal-opportunity-applauds-scotus-s-affirmative-action-decision#sthash.35WxXwG7.dpuf

One other individual opposing consideration of race is Jennifer Gratz, who is CEO of the XIV Foundation. She also issued a statement praising the Supreme Court; the XIV Foundation sued the University of Michigan over its affirmative action policies and was a key figure in the campaign to pass Proposition 2. She goes on to affirm that “Much progress has been made over the past 15 years in challenging discriminatory policies based on race preferences and moving toward colorblind government,” Gratz said. “Today’s ruling preserves this foundation and is a clear signal that states are moving in the right direction when they do away with policies that treat people differently based on race, gender, ethnicity or skin color.”

In fact, one can find numerous organizations and individuals actively seeking to dismantle affirmative action and diversity policies, not only in the seven States that have passed banning legislation, but in all the remaining states of the Union. states banning affirmative action/Word. Read also the germane article by Jared Taylor, The Myth of Diversity/Web.

Defending Affirmative Action and Diversity

Justice Sonia Sotomayor is featured in this blog as the stalwart defender of Affirmative Action and Diversity in American higher Education, below. This meritorious distinction notwithstanding, is no reason to ignore the existence of what can be termed a “cottage industry” of individuals, private and public organizations and institutions, as well as official entities at the federal, state and local level promoting, implementing and defending Diversity and Affirmative Action policies and programs.

Justice Sonia Sotomayor’s dissent 

Justice Sonia Sotomayor gave credit to affirmative action when responding to the question Do you think you would have been admitted to Yale Law School if you were not Puerto Rican?” with the following: “It probably didn’t hurt,” a stunned Sotomayor said, “but I imagine that graduating summa cum laude and Phi Beta Kappa from Princeton had something to do with it too.”  http://news.yahoo.com/justice-sonia-sotomayor-affirmative-action-opened-doors-life-194015559–abc-news-politics.html.  However, notice that in writing and reading her dissent from the bench in the Michigan affirmative action case, Justice Sonia Sotomayor warned that minority students now face an increased burden to have their historical circumstances taken into consideration. Factoring in “legacy” status is possible by petitioning a school’s admissions board, but racial factors may only considered by re-amending the state constitution”.

Justice Sonia SotoMayor from The New York Times

Justice Sonia Sotomayor
New York Times

Justice Sotomayor continues: “We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do,” the dissent says. “This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self-government. That right is the bedrock of our democracy, for it preserves all other rights.” http://news.yahoo.com/justice-sonia-sotomayor-affirmative-action-opened-doors-life-194015559–abc-news-politics.html

Justice Sotomayor added that the voter initiative “restructures the political process” in Michigan to place unique burdens on racial minorities.  She says further, “Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process.” “Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter what neighborhood he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?'” http://news.yahoo.com/justice-sonia-sotomayor-affirmative-action-opened-doors-life-194015559–abc-news-politics.html

Anther staunch defender is Mr. George B. Washington, a lawyer for BAMN. He  said in an interview shortly after the Supreme Court ruled that it was “a terrible decision … equivalent to Plessy v. Ferguson,” the 1896 ruling that upheld the doctrine of “separate but equal.” Washington said that the Supreme Court has “turned over to the states what rights minorities have,” and that measures like Proposition 2 “have already led to the resegregation of the University of California and the University of Michigan.” “In a state like Michigan, where the electorate is overwhelmingly white, the Supreme Court has given the white majority “ “veto power over the political rights and educational futures of black citizens, and that is not acceptable,”” he said. “”Frankly, our sense is that they have taken off the gloves, and now we have to take off the gloves, and go back to the sit-ins and strikes and all the things that won the civil rights movement.””     http://www.insidehighered.com/news/2014/04/23/supreme-court-upholds-right-state-voters-bar-consideration-race-admissions#ixzz32TM5R19s

The view of an apparent majority of Justices (see paragraph above) is that rejection of Affirmative Action and Diversity policies is rooted in resentment. This may or may not be so, however, Hispanic Americans should take note: 1st, that Justices should not consider themselves in the business of justifying prejudice and its ill consequences; and 2nd, that any such antagonistic feelings may be more the consequences of demographic changes. For instance, in the May 2014 issue of The Atlantic, Robert Jones summarized a survey research undertaken by C.E.O. of P.R.R.I, concluding, “The core of Sotomayor’s dissent was that even after significant civil-rights legislation has passed, the Southern Baptist denomination has apologized, and the nation has elected a black president, race still matters. The data suggest we are still living in a liminal time, when outright racism is nearly universally condemned but when white Americans still carry significant unspoken anxiety and negative feelings about the shifting racial balance in the country.”{On the Precipice of a ‘Majority-Minority’ America,” by Maureen A. Craig and Jennifer A. Richeson,, —survey conducted on 2013 of 1,028 respondents, which was designed “to assess anxieties concerning the changing racial makeup of the country”. http://journalistsresource.org/studies/society/race-society/majority-minority-america-perceived-status-threat-white-citizens .}

Affirmative Action was a “gift” out of the magnanimity of the political elite of the American Nation. However, with the U.S. Supreme Court affirming of the Michigan ban, together with the above mentioned negative factors, among others, Hispanic Americans should pause, and ask a future determining question: should young Hispanic Americans keep hoping for equality in higher education and elsewhere to materialize from the top down, or should they bring it about from the ground up? “Should Hispanic keep pinning their hopes on the currently ideologically locked U.S. Supreme Court!Definitely, for Hispanic Americans, Affirmative Action is Dead. Long Live Affirmative Action. 

An important Note:

There seems to be a widespread agreement that blacks have been submitted to egregious – in times subhuman – conditions throughout the history of the American nation. Currently, however, there is also considered disagreement as to whether the nation still needs to make restitution to the American citizens of the black race. In this sense, Gunnard Myrdal is still relevant, and his assertion is still current; the United States society is still mired in an AMERICAN DILEMMA. The Negro Problem and Modern Democracy. 1962. Written by Gunnar Myrdal. With the Assistance of Richard Sterner and Arnold Rose. Harper & Row Publishers, New York. Thus, for blacks in America, equality in higher education constitute a very special and pressing case. http://www.nytimes.com/2015/11/10/us/university-of-missouri-system-president-resigns.html?_r=0.

In this and related future blogs, however, I will be commenting exclusively on the plague of Hispanic Americans in light of the recent US Supreme Court decision on affirmative action.




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