STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONS 20–1199 v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE ON CLAIMS OF CERTIORARI UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONS 21–707 v. UNIVERSITY OF NORTH CAROLINA, ET AL
I am an expert in insurance law and rarely get involved in race issues. I was one of very few Jews at my college and had a cross burned on the lawn of an old apartment where I was housed because there was no room in a dormitory. One student always greeted me with the comment: “Six million and one, Zalma.”
I managed to graduate and made some friends. One of the few black students was a Congo native who was shocked to learn that my brother had married a Congo native who was actually a Belgian Jew. Discrimination is wrong but it can be overcome and this Supreme Court decision has made it unconstitutional. I graduated from college in 1964 long after the 14th Amendment and its statement of the Constitution’s requirement that no one shall either suffer or benefit from discrimination. I thank members of the Supreme Court for recognizing the mandate of the Constitution before I untangle this deadly coil.
I have excepted what I believe to be important parts of Justice Thomas’s concurrence, in long 58 pages he wrote with persuasiveness, among other things:
measures’ adoption makes their motivating principle which
plain as the text: All citizens of the United States, with regard to
less of skin color, are equal before the law.
* * *
As enacted, the text of the Fourteenth Amendment pro-
provides a firm statement of equality before the law. It begins
by guaranteeing citizenship status, invoke
“Long-standing political and legal tradition that closely associates
cited status as citizenship with the right to legal
equality.” Vaello Madero, 596 U.S., at ___ (THOMAS, J.,
concurring) (slip op., at 6) (internal quotation marks omitted-
ted). It then affirms that states may not “abbreviate
rights to national citizenship, including all civilians
Equality is guaranteed to “citizens” during citizenship
Clause.” Id., at ___, n. 3 (bills, at 13, n. 3). Finally, it
promises that even non-citizens must be treated equally “as
individuals and not as members of racial, ethnic or religious
large groups.” Missouri v. Jenkins, 515 US 70, 120–121
(1995) (THOMAS, J., concurring).
* * *
Despite extensive evidence favoring the color blind
View, as described above, it seems increasingly fashionable to
adopt an “anti-subordination” view of the Fourteenth
Addendum: that the addendum prohibits only laws which
harm, but not help, blacks. Such a theory lacks foundation
the original meaning of the Fourteenth Amendment.
* * *
To meet strict scrutiny, universities must be able to e-
present a compelling reason to racially discriminate.
* * *
The constitution’s color-blind rule reflects one of the core
principles upon which our nation was founded: that “all
men are created equal.” Those words stood out
in our Declaration of Independence and was inspired by a
rich tradition of political thinkers, from Locke to Montes-
quieu, who considered equality the basis of a just
* * *
Even take the desire to help on his face, what initially
It seems that aid in reality can be a burden, even for
very people it wants to help. Take college for example
admission rules here. Affirmative action policies do
nothing to increase the total number of blacks and his-
panic can gain access to a college education. Rather, they ra-
cial policy simply redistributes individuals between institutions
higher education, making some more competitive
institutions than they would otherwise have participated in. Ser
T. Sowell, Affirmative Action Around the World 145–146
(2004). By doing so, that policy sorts out at least some blacks
and Hispanics to environments where they are less likely
to succeed academically in relation to their peers.
* * *
Finally, it is not even theoretically possible to “help” one
certain racial group without harming members of
other racial groups.
Regardless of their skin color, today’s youth are simply not responsible for instituting 20th century segregation, and they do not shoulder the moral debt of their ancestors. Our nation should not punish the youth of today for the sins of the past.
* * *
In fact, all racial categories are little more than stereotypes, suggesting that immutable characteristics somehow decisively determine a person’s ideology, beliefs, and abilities. Of course it is false. … Members of the same race do not all share exactly the same experiences and viewpoints; far from. A black person from rural Alabama certainly has different experiences than a black person from Manhattan or a black first-generation immigrant from Nigeria, just as a white person from rural Vermont has a different perspective than a white person from Houston, Texas. Yet the university’s racial policy suggests that racial identity “constitutes only the essence of the race or the man.” J. Barzun, Race: A Study in Modern Superstition 114 (1937). It is the same naked racism that segregation itself was built on. It is therefore no wonder that these policies lead to increasing racial polarization and friction. This type of reductionist logic leads directly to
“disregarding that which does not accord with preconceived theories,”
provide a “cloa[k] to hide complexity, argument[t] to
crown to praise or condemn without the trouble of walking
into details”—such as details of an individual’s ideas or
unique background. Ibid. Instead of forming a more plu-
ralistic society, this politics therefore robs us of our individual
ality and undermines the very diversity of thought which
versities purport to search.
* * *
Racism simply cannot be invalidated by different or more racism. Instead, the solution announced in the Second Founding is incorporated into our Constitution: that we are all equal, and that we should be treated equally before the law regardless of our race.
* * *
With the passage of the Fourteenth Amendment, the people of our nation proclaimed that the law may not sort citizens based on race. It is this principle that the framers of the Fourteenth Amendment adopted in the wake of the Civil War to fulfill the promise of equality under the law. And it is this principle which has guaranteed to a nation of equal citizens the privileges or immunities of citizenship and the equal protection of the laws. To now dismiss it as “two-dimensional flatness,” post at 25 (J ACKSON, J., dissenting), is to abdicate a sacred trust to ensure that our “honored dead . . . shall not have died in vain.” A. Lincoln, Gettysburg Address (1863)
* * *
If social reorganization in the name of equality can be justified by the mere fact of statistical differences between racial groups, then that reorganization must continue until those differences are completely eliminated, regardless of the causes of the differences and the costs of eliminating them. If blacks fail a test at a higher rate than their white counterparts (regardless of whether the reason for the difference has anything to do with race), the only solution will be race-focused measures. If these actions would result in Black failing at an even higher rate, the only solution would be to double down. In fact, there seems to be no logical limit to what the government can do to level the racial playing field—direct wealth transfers, quota systems, and racial preferences would all seem permissible. In such a system, it would not matter how many innocents suffer race-based injuries; all that matters is reaching the race-based goal.
* * *
Even today, affirmative action that offers an admissions boost to black and Hispanic students discriminates against those who identify as members of other races who do not receive such preferential treatment.
* * *
Historically black colleges and universities (HBCUs) do not have a large amount of racial diversity, but they demonstrate a marked ability to improve the lives of their students.
* * *
The great failure of this country was slavery and its offspring. And the tragic failure of this Court was its misinterpretation of the Reconstruction Amendments, as Justice Harlan predicted in Plessy. We should not repeat this mistake simply because we believe, as our predecessors believed, that the present arrangements are superior to the Constitution.
The court’s opinion rightly clarifies that Grutter is essentially disregarded. And it sees university admissions policies for what they are: rudderless, race-based preferences designed to ensure some racial mixing in their entry into classes. That policy goes against our color-blind constitution and our nation’s ideals of equality. In short, they are clearly – and boldly – unconstitutional. See Brown II, 349 US, at 298 (noting that the Brown case a year earlier had “declared[d] the fundamental principle that racial discrimination in public education is unconstitutional”).
While I am painfully aware of the social and economic ravages that have befallen my race and all who are discriminated against, I have an abiding hope that this country will live up to its principles so clearly expressed in the Declaration of Independence and the United States Constitution. States: that all men are created equal, are equal citizens and must be treated equally before the law.