Justice Sotomayor and the affirmative action bitter-enders have lost bigtime

The American public has woken up to the folly of trying to end racial discrimination by practicing it, dooming affirmative action to a slow death, and the racialist left is not taking the news very well. That is the only conclusion to draw from the extraordinary dissenting opinion yesterday by Justice Sonia Sotomayor in Schuette v BAMN, the case in which the Court upheld Michigan’s law outlawing racial preferences in state-funded higher education. Sotomayor took the unusual step of reading the dissent aloud from the bench, indicating her vehemence.

Justice Sotomayor’s dissent was actually longer than all the other opinions in the case combined, so that reading took a while. But she was faced with a difficult task in explaining why refusing to treat races differently is actually racial discrimination, so of course she need a lot of verbiage, background, and pretzel twisting.

Four aspects of her argument stand out:

She attempted to re-brand “affirmative action” as “race-sensitive admissions.”  

“Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, Instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage toan applicant because of her race; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court’s decision in Grutter v. Bollinger, 539 U. S. 306 (2003).” (fn. 2)

John Fund correctly notes that this is an implicit admission of failure: “You can often tell when advocates of one side in an argument fear they will ultimately lose. They change their branding.”

She doubled-down on the questionable notion that preferences benefit minorities. There is a growing body of experience indicating that the phenomenon known as “mismatch” results in minorities being placed in situations where they cannot compete with the more-qualified students who received no such preferences. The results have been high drop-out rates, leaving failed students worse off than if they had been admitted to institutions where their qualifications were similar to those of other students.

This is precisely what has happened with the end of racial preferences in California following the passage of Proposition 209. Fewer blacks and Hispanics have been admitted to the elite campuses at Berkeley and Los Angeles, but more have gone to less competitive schools. The overall graduation rate for blacks and Hispanics has risen in the UC System.

Yet Sotomayor appealed to “common sense” in writing about the “common sense reality that race-sensitive admissions benefit minorities.”

Left completely out of the picture in her dissent was the situation of Asian-Americans, a minority to be sure, but one that is greatly harmed by “race-sensitive”

 She attacked Chief Justice Roberts’ common sense words (without naming him) in another decision -- “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” --  as “out of touch with reality.” She continues, “Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process.” Instead, she says, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

She embraced the notion that no preference can ever be rolled back. She enunciated the theory that any change which “disadvantaged” minorities (in her opinion – see point 2 above) is inherently discrimination:

“This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.” (snip)

“But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities.”

William Jacobson correctly observes, “This is, as Kurt Schlichter calls it, essentially a ratchet theory, that no preference ever can be rolled back otherwise the rollback is discrimination.”

Sotomayor isn’t the only one who realizes the magnitude of the loss the race industry has endured. By Any Means Necessary (BAMN), the plaintiff in the case, is vowing resistance:

George Washington — who represents BAMN or “By Any Means Necessary” — threatening to take aim atthe Supreme Court’s decision to uphold Michigan’s ban on using race as a factor in college admissions.

“We’re going to have to take the gloves off,” Washington told WWJ Newsradio 950, shortly after the justices’ ruling was announced on Tuesday. “This Supreme Court is systematically setting about undoing the gains of the Civil Rights Movement, so we’re gonna have to return to the methods of sit-ins and protests, and strikes and the things which won it in the first place.”

Somehow I doubt Harry Reid will call them “domestic terrorists.”