The Grutter case involved the University of Michigan’s law school, and in it the court said there must be strict scrutiny used by colleges and universities in evaluating whether their admissions processes were as race-neutral as possible to achieve whatever compelling educational objective was sought after. In the Fisher case, the court said that strict scrutiny may not have been used in evaluating the University of Texas admissions process, and suggested that the Appeals Court, which had sent the case to the U.S. Supreme Court, review the case again based on that strict scrutiny doctrine.
Meanwhile, in reporting this news, both CNN and MSNBC, and other outlets, reported that Justice Thomas had compared antebellum slavery in America with affirmative action, saying that they were virtually the same. I am no fan of Justice Thomas, but I read the published version of his opinion. It made no such comparison. He did say that arguments slaveholders and segregationists made, e.g., that slavery was good for the Negro, and it had both civilized him and saved him from savagery, were similar to arguments being made by the University of Texas that by using race to make admissions decisions the university was benefiting Black Americans by making them more successful.
To Justice Thomas, this appeal to the consequences of belief argument was invalid in both cases, and should have led the court to overturn the university’s admissions process.
Affirmative action is still a white-hot topic in American education, if not now in employment. Even California has been urged to re-look at its Prop 209 prohibition against affirmative action in public education to see if the state’s law can pass the strict scrutiny evaluation. Otherwise, the ACLU may get a Supreme Court review of the validity of Prop 209 in the very near future. That would be a fight worth seeing.
Professor David L. Horne is founder and executive director of PAPPEI, the Pan African Public Policy and Ethical Institute, which is a new 501(c)(3) pending community-based organization or non-governmental organization (NGO). It is the stepparent organization for the California Black Think Tank which still operates and which meets every fourth Friday.
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