Affirmative action and non-discrimination are not the same

A former law intern to Biden DOJ head Merrick Garland wrote an article in the major press trying to convince readers that the Supreme Court's recent ruling on affirmative action will effectively start a new race war.

The University of Chicago Law professor, a member of a higher education institution surrounded at all levels by former Obama administration interests, tries to argue technically that the Court's action seeks to achieve an impossible standard of color blindness.  But the real problem is that affirmative action was not sufficiently narrow, or focused, to actually achieve its stated purpose, and became excessively broad in its interpretation and usage.  Indeed, the professor shoots herself in the foot and ratifies the Court's decision by her own admission: "Race gaps characterize nearly every dimension of U.S. life."  No, they do not, and the Court ruled correctly.

I admit a certain bias as a graduate of the University of Chicago: as conservative scholar and Chicago Ph.D. Thomas Sowell described, it wasn't until he left Harvard and came to UChicago to study with economist Milton Friedman that he learned how to think pragmatically in comparison.  This involves looking soberly at data and implications, rather than, as Sowell described about Harvard, using your personal beliefs as facts.

So it was with some disappointment that the Chicago Law professor, writing recently in the New York Times, engaged in another highly partisan interpretation of legal principles.

The tenured law professor in question, Ms. Sonja B. Starr, asserts that this is only the beginning of many more challenges that will upset what she thinks is justice.  Starr frames affirmative action as merely equal treatment, but that is precisely what the Court's ruling tries to advance.  Starr is among nearly all law school professors who like equal treatment but who likes unequal treatment much better if there is a political cause to join and it is linked to federal largess.  (Starr never brings up alternative legal doctrine such as the right to association so that readers have some perspective to weigh her argument and the issue, nor does she help readers with related concepts of scrutiny, means-ends, and overbreadth doctrine, which the Court was arguably concerned about, given affirmative action's increasingly unlimited reach.)

Most fundamentally, Starr misunderstands the difference between anti-discrimination and affirmative action.  The former is law, the latter policy.  One is a rule that affirmatively protects all categories (such as disability, age, or religious affiliation); the other is an activist program to promote one category above all others — race — and then use it, as she does deceptively in her essay, as a proxy for any other disadvantage, or even interest.

As UChicago's first black Ph.D. and Hoover Institute Fellow Thomas Sowell has shown statistically, affirmative action has set blacks back in terms of nearly all social and economic categories.  Unfortunately, Starr and her like-minded ideologues will continue to use the law, and legislation, as a tool to misrepresent means-ends if it otherwise serves their beliefs.

Even in technical legalism, such as the concept of "strict scrutiny," which she blames the Court for employing in its decision, and thereby prejudicing future rulings, she doesn't bother to actually help readers understand what this term means and why it is important.  The left law academy doesn't generally like strict scrutiny, narrow interpretations or tailoring — or any rules viewed pragmatically and directed to narrowly defined, intended goals.  As Starr asserts, this would "represent a potential revolution that would severely constrain efforts to reduce racial disparities or promote integration."  Now it's easier to understand how the Court came to its decision.

Affirmative action as a political program cannot survive narrow interpretation or tailoring, because it requires the widest of applications in order to flourish under the activist model of progressivism and thereby point to an enormous breadth of largely unrelated legal cases as "precedent."  In the progressive left's legal mind, discrimination is present in everything, and everything is potentially racial.  Starr leaves little out of her imagination: "life expectancy, maternal mortality, employment rates, income, wealth, environmental exposures, environmental regulations, health policy and criminal justice reform."

As Chief Justice Roberts has explained before, there must be a narrow tailoring to justify government interest: the Court found affirmative action not only discriminatory, but wildly abused.  The Court's judgment isn't as corrective as it could be, but it approximates a direction toward merit and self-improvement.  That of course is kryptonite for the racial opportunists of the political left, and the law professors of the University of Chicago, who demonstrate again that radical-left ideology cannot actually explain itself, or sustain a rational legal argument that itself passes law's procedural or doctrinal tests.

Matthew G. Andersson is a former CEO and has been featured in the Wall Street Journal, the New York Times, the Financial Times, and the Chronicle of Higher Education and has testified before the U.S. Senate.  He is a graduate of the University of Chicago and author of the upcoming book Legally Blind.  He studied with White House national security adviser W.W. Rostow at the LBJ School of Public Affairs.

Image: Adam Jones via Flickr, CC BY 2.0 (cropped).

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