The reactionary 2/3 of the Supreme Court announced today that the kind of affirmative action that favors black college applicants, simply because they’re black, is no longer legal. That’s not what earlier Supreme Courts thought, but legal precedent doesn’t matter if you’ve got enough votes.

Race-based affirmative action has always been controversial and even with the Court’s 6-3 decision today, what’s legal and what isn’t will remain murky. The Court now says race can be a factor in college admissions if it played a sufficiently significant role in the applicant’s life. Obviously, this isn’t the end of the matter.

The decision (full text here) talks a lot about the 14th Amendment to the Constitution. That’s the one that says “no state shall … deny to any person within its jurisdiction the equal protection of the laws”. The amendment was adopted after the Civil War to protect black Americans, especially former slaves, from discrimination.

But the notion of “equal protection” is vague. When a college admits somebody based on their athletic prowess, are applicants with no athletic skills being equally protected? How about the children of alumni or university staff? Are applicants whose parents never went to college or don’t work at the university in question equally protected?

I was trying to answer this question for myself when the internet led me to the Civil Rights Act of 1964. It famously prohibits discrimination on the basis of race, color, religion, sex or national origin. That seems to be a clearer, although not necessarily clear, rule to follow than the 14th Amendment’s equal protection clause. In fact, Wikipedia says the Civil Rights Act was enacted in order to clarify the meaning of “equal protection”.

Looking to see what today’s decision said about the Civil Rights Act, I found a concurring opinion from Justice Gorsuch (a prominent reactionary). This is what Gorsuch says:

For some time, [Harvard and the University of North Carolina] have decided which applicants to admit or reject based in part on race. Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either. [p. 107]

… a clear rule emerges. Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to “some other … factor” that contributed to its decision to disfavor that individual… It does not matter if the recipient discriminates in order to advance some further benign “intention” or “motivation”. [p. 109]

Gorsuch concludes that since the Civil Rights Act doesn’t mention, for example, athletic prowess or whether your parents ever went to college, it’s fine to discriminate against lousy athletes and applicants whose parents only finished high school. That makes a certain amount of sense, although there are devils in the details.

If you want to hire somebody to teach Chinese, it is discrimination if you favor somebody born in Shanghai over somebody born in Iowa? If the drama club is casting Hamlet, is it discrimination to lean toward a woman playing Ophelia instead of a man? The blunt language of the law suggests it would be illegal to do so.

Presumably, a college can still favor an applicant who grew up in Alabama or Compton over one from Darien, Connecticut, or Malibu. That’s one way to indirectly and haphazardly consider race in college admissions.

But this is why we have legislators and judges, to clarify such matters (it’s really too bad so many of them are Republicans).

Even though Gorsuch thinks the Civil Rights Act presents a clear rule — not simply a clearer one — the six reactionaries included this exception in their decision:

The United States [government] contends that race-based admissions programs further compelling interests at our Nation’s military academies….This opinion … does not address the issue, in light of the potentially distinct interests that military academies may present.

In other words, our military academies may continue to factor race into who they admit, the rationale for this exception being that the officer corps shouldn’t be a lot whiter than the regular troops. Yet having a racially diverse officer corps is just one of those “other factors” or “benign intentions or motivations” that Gorsuch says are irrelevant.

Is having a racially diverse student body a factor to be considered when deciding who gets to attend and graduate from our nation’s most prestigious universities? Apparently not.

So much for right-wing consistency (but, after all, they have the votes).

PS: The Court also issued a decision today in a case involving a Christian who worked for the post office. When the post office began making deliveries on Sundays, this employee told his supervisor that he couldn’t work that day of the week because of his religious beliefs (he sought a religious “accommodation”).

With Groff unwilling to work on Sundays, USPS made other arrangements. During the peak season, Sunday deliveries that would have otherwise been performed by Groff were carried out by the rest of the [local] staff, including the postmaster, whose job ordinarily does not involve delivering mail. During other months, Groff ’s Sunday assignments were redistributed to other carriers assigned to the [region]. Throughout this time, Groff continued to receive “progressive discipline” for failing to work on Sundays. Finally, he resigned.

He then sued the post office. The Supreme Court unanimously sent the case back to a lower court for further proceedings. But weren’t the non-Christian employees forced to work on Sunday being discriminated against for not being Christians? Wouldn’t their treatment violate the Civil Rights Act of 1964, which outlaws discrimination based on religion? Thank heavens we have distinguished jurists to answer these questions.