Category Archives: Law

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Theodore Johnson says the quiet part out loud

The scorn heaped on Americans of Asian descent by black Americans since the Supreme Court’s decision  in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, declaring what we all knew, that the equal protection clause in the 14th Amendment prohibited Affirmative Action using racial preferences. Promise Li wrote, in The Nation:

(W)e must be clear about one thing: Asian American anti–affirmative action activists have not been simply “used” by white activists and duped into this white supremacist policy. They are active, militant co-conspirators with white conservatives.

Why? The Supreme Court case was made by Americans of Asian descent, because they were being discriminated against by Harvard University and the University of North Carolina — the parties to the case, but the discrimination has been much, much wider — being held to admissions standards far higher than black applicants, and even white applicants. This was hardly novel at Hahvahd, where a 15% maximum admissions quota was placed on Jews in the 1920s. Jerome Karabel argued, in a Slate article published well before the Court’s decision was announced, that the two were not the same, but made a practical case that they sure weren’t very different:

The comparison is superficially compelling. A longstanding body of scholarship—by Stephen Steinberg, Marcia Graham Synnott, myself, and others—does in fact establish that Harvard, threatened by an influx of high-achieving Jewish students, did impose quotas on Jewish applicants in the 1920s, using elusive nonacademic qualities such as “character” and “personality” to limit their numbers. And in recent years, Harvard and other elite institutions have faced a surge in applications from Asian Americans with outstanding academic records, and they, too, have often been plagued by lower scores on personality assessments. Over the past decade, the portrayal of Asian Americans as the “New Jews” has gained traction, appearing everywhere from the Wall Street Journal to the New York Times, from the Atlantic to the Times of London.

Whatever distinctions Mr Karabel took, they were distinctions without a difference!

So now we come The Washington Post:

Opinion: How the myth of a ‘model minority’ works to divide Americans

Theodore R. Johnson, from his Twitter profile.

by Theodore R Johnson, Contributing Columnist | Tuesday, July 11, 2023 | 6:30 AM EDT

Lately, I’ve been thinking a lot about Bobby and Annie, two of my high school classmates from 30 years ago. They used these American names instead of their given names. Bobby, whose given name I never knew, is of Japanese descent. Annie, whose given name I always knew, is the daughter of Taiwanese immigrants. By any names, they are both Americans, born and bred.

It was the early 1990s, and I wondered why so many Asian American students picked new names. We grew up in North Carolina at a time when elementary school teachers wheeled out big TVs on steel media carts so we could watch college basketball in our classrooms. We could pronounce the name of Duke University’s former coach — Mike Krzyzewski — before we could tie our shoes. If we could say all those consonants, then we could say Annie’s given name. Meanwhile, Black Americans were becoming more creative with their names, and, let me tell you, Ka’Taydreeyah wasn’t changing her name to Kate for anyone.

“If we could say all those consonants,” huh? LOL! If you can tell me how you get shih-ZHEF-skee out of Krzyzewski, I’d be glad to read it.

Had Mr Johnson thought about it a bit, he might have realized that ‘Americanizing’ names was hardly something started by Asian-Americans; American Jews have been doing so for over a century because, yes, anti-Semitism has existed; the Harvard Jewish quota certainly proved that.

They’ve been on my mind after the Supreme Court’s ruling last week that effectively ended race- and ethnicity-based affirmative action in college admissions. The suit was filed on behalf of Asian American students who claimed such programs discriminated against them. The term “model minority” does not show up in the court’s opinion — but the myth helps in understanding why affirmative action was destined to pit Asian and Black Americans against one another. It was always going to end this way.

The model minority myth is the idea that Asian Americans, relative to other people of color in the United States, have a stronger commitment to hard work and determination that has resulted in economic and academic success. It says they acculturate better and with more intention. The myth suggests that Bobby and Annie felt compelled to choose familiar American names to ease their acculturation into White American society. But what of the taunting and beating? If this is how the nation treats its model minorities, what hope is there for the rest of us?

Mr Johnson wants us to believe that ‘hate crimes’ against Asian-Americans somehow make their “economic and academic success” irrelevant, but the admissions people at Harvard and UNC aren’t out on the streets, assaulting Asians for no discernable reason other than thuggery; they are educated people, in decently compensated positions, in our hoitiest and toitiest universities.

“The way to stop dis-crimination on the basis of race is to stop discrim-inating on the basis of race.” — Chief Justice John Roberts, Parents Involved in Community Schools v. Seattle School District No. 1

We have previously noted the apparently acceptable racial discrimination against Asians in the United States, and how white liberals not think that black and Hispanic students “have what it takes to compete on merit,” but they dismiss the achievements of students of Asian ethnicity as “white adjacent.” In his own way, Mr Johnson is telling us that Asian-Americans are just that, de facto white people.

This myth is a recent invention. Asian Americans — admittedly an inaccurate catchall group name — were long subjected to discriminatory policies in the United States. Historian Ellen Wu describes the characterization of Asian Americans and immigrants — specifically from Japan and China — through the 1940s and 1950s as definitively not-White. But as the geopolitical interests of the nation evolved after World War II and the civil rights movement domestically took center stage, she says, a narrative emerged that painted Asian Americans as “the model minority — a racial group distinct from the white majority, but lauded as well assimilated, upwardly mobile, politically nonthreatening, and definitively not-Black.”

Here Mr Johnson essentially complains that Asian-Americans have done exactly what we have said immigrants should do: assimilate into the larger American culture, and work hard to make themselves successful. That, after all, was what was expected of other waves of immigrants, mostly from Europe: Germans, Irish, Slavs, and, Heaven forfend!, those so successful that Harvard had to quota-restrict them Jooooos.

Perceptions of Asian Americans changed just as the concept of colorblindness was redefined in American discourse. When Asian people were “definitively not-White,” the idea of a colorblind society was the antithesis of the hierarchical society structured with White people at the top. As the civil rights movement began racking up policy wins, Asian Americans were redefined as model minorities and “colorblind” came to mean race is no longer a factor; as such, race-conscious remedies are the new racism.

By the late 1960s, many White politicians were using the model-minority concept in two primary ways. The first was as proof that the government had sufficiently addressed racism in our laws and that the playing field was now level. What else could explain how Asian Americans, after decades of overt discrimination and oppression, achieved such success? The second was an explicit counterargument to civil rights leaders who insisted tailored, race-conscious policies were necessary to address the lingering effects of slavery and Jim Crow. It made Black people the polar opposite of the model minority, shifting the onus for racial disparities almost completely onto Black people and their supposed lack of initiative and ingenuity.

And here we come back to Mr Johnson’s opening. “Bobby” and “Annie”, he said, picked very Americanized names, as they were trying, almost certainly encouraged by their parents, to fit in, to assimilate, while “Ka’Taydreeyah” certainly would not. “Black Americans were becoming more creative with their names,” Mr Johnson wrote, but has that not worked out to be a separation of black Americans from the rest of American culture?

Oh, wait, I’m not supposed to say something like that, am I?

Following this thinking through to its logical conclusion, the Supreme Court’s affirmative action ruling is not surprising. Its portrayal of Asian Americans as model assimilators is not a compliment, nor is it proof that structural racism is an artifact of the past. This portrayal serves only to exploit one minority group, to condemn others and to argue against accounting for a people’s history.

Also see: Robert Stacy McCain: Math = White Supremacy

And there you have it: Mr Johnson has just told us that being “model assimilators is not a compliment,” an argument which, with his early emphasis on names, is that it is perfectly legitimate for black Americans not to assimilate — an odd term, given that blacks have been in America for almost as long as whites — but it ignores an obvious point: what if black culture in America is simply not as socially or economically efficient or productive as white culture? Is it possible, just possible, that separate cultures in our social and economic systems could produce different aggregate results?

The legal arguments for and against affirmative action in higher education will continue. Universities will try new ways of diversifying their populations, and begrudged people will sue. The model-minority myth is sure to be a weapon in these battles.

Mr Johnson has just told us that those who have suffered actual discrimination in the pursuit of Affirmative Action haven’t really suffered anything, but are simply “begrudged,” as though someone cut ahead of them in the check-out line at Kroger, rather than someone not being allowed to shop at that store.

But policy aside, the myth cannot escape the particularly ugly set of assumptions that results when American exceptionalism meets racial hierarchy: If you are Black in America, you can become an exceptional person; if you are Asian in America, you are an exceptional people; and if you are White in America, you are the prototype. We’ve been working ourselves away from that America for some time, but we risk returning to it if we trade one set of racialized myths for another.

Mr Johnson concludes by telling us that we are all different, yet somehow, some way, he cannot conceive, or at least will not recognize, that different actions can and will produce different results, and that if those actions tend to be internally consistent among racial or ethnic groups, those groups will, in the aggregate, see disparate results.

It’s a very simple reality that people do not want to recognize: the social, economic, and political culture which developed under European people has produced stronger and more prosperous social and economic results. The “model minorities” in the United States which had been previously discriminated against, Jews in the early twentieth century, and Asians somewhat later, assimilated and adopted much of that Western civilization culture, and they have prospered in the United States, and there is no particular reason of which I can think why black Americans could not do the same.

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The ‘Wise Latina’ says the quiet part out loud.

At the annual Mario G. Olmos Law and Cultural Diversity Lecture at UC-Berkeley in 2001, Federal Judge Sonia Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Those words were fished out after President Barack Hussein Obama nominated her to fill a vacancy on the Supreme Court. What can those words mean other than, as a jurist, Hudge Sotomayor would take her decisions, at least in part, based not on the law, but on her race, sex, and ethnicity.

She backed away from that statement in her confirmation hearings, “declaring it ‘a rhetorical flourish that fell flat’ and stating that ‘I do not believe that any ethnic, racial or gender group has an advantage in sound judgment,'” and she was ultimately confirmed, 68 to 31.

Well, today Associate Justice told us, once again, that it isn’t what is written in the law, or the Constitution, that is important, but people’s feelings! In her dissent in 303 Creative v Elenis, she wrote:

The meaning of our Constitution is not found in any law volume, but in the spirit of the people who live under it.[1]303 Creative v Elenis, , page 38 of dissent, page 70 of the .pdf file.

This is rather remarkable. The Justice, utterly horrified by the decision that a Colorado web designer could not be compelled to create a website for a same-sex ‘wedding,’ cited precedent after precedent telling us that the government could, and has, gotten away with both restricting and compelling various forms of commercial speech, along with dozens of citations of laws and court cases concerning equal access to commerce and commercial enterprises. Yet, after all of that long dissent, she broke down and told us that what was written in the law just flat didn’t matter. What mattered, according to our ‘wise Latina,’ is how the people who live in the United States feel about things.

This is a hugely dangerous position, but one which is hardly unexpected. Justice Sotomayor voted against religious freedom in the cases of Calvary Chapel Dayton Valley v. Sisolak and South Bay United Pentecostal Church v. Newsom, but railed against the decision, this time supporting the freedom of religion and assembly in Roman Catholic Diocese of Brooklyn v Cuomo. The cases were all about the same thing: the states forcing churches to close, due to the COVID-19 penicdemic, and Justice Sotomayor believed that the virus trumped the Constitution of the United States.

The good Justice also saw nothing wrong with restricting our Second Amendment rights in New York State Rifle & Pistol Association v Bruen and McDonald v City of Chicago, or upholding equal protection under the law in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The plain words of the Constitution meant nothing to Justice Sotomayor, or the other liberals on the Court, as they went through all sorts of contortions to say that somehow, some way, the rights guaranteed to us by the Constitution just didn’t matter when it came to liberal policies.

The liberals on the Court are hardly the only ones who want to massage the words of the Constitution to mean something other than what they say. The Editorial Board of The New York Times opined:

In striking down affirmative action in higher education on Thursday, the Supreme Court’s conservative majority said it had to do so because the Constitution forbids any form of racial distinction. With a single opinion, the justices overturned decades of precedents that upheld race-conscious admissions policies as consistent with the 14th Amendment’s equal protection clause and ignored the reality of modern America, where prejudice and racism endure.

The Editorial Board spend many words telling us why Affirmative Action is so desperately needed, yet never manage to give us a reason as to how it fits under the equal protection of the laws guaranteed by the Fourteenth Amendment.

Thursday’s ruling, written by Chief Justice John Roberts and joined by all of the Republican-appointed justices, takes a long time to make a simple — and simplistic — point: There is no real difference between the centuries of racial discrimination against Black people and targeted race-conscious efforts to help Black people. Both are equally bad, in this view.

Left unaddressed was one of the Chief Justice’s points, that, in the context of university admissions, which are a zero-sum game, helping black applicants has another effect, hurting white and Asian applicants.

There is so much more that could be said, but, in the end, it boils down to this: the left have programs in mind which elevate the programs of the government over the rights of individuals, and today’s left are fine with that. And that is why sensible people must fight the left, fight for our rights, because the left won’t help us.

References

References
↑1 303 Creative v Elenis, , page 38 of dissent, page 70 of the .pdf file.
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The Supreme Court destroys all chances of race-based ‘reparations’

It was 2003 when the Supreme Court released its decision in Grutter v Bollinger, 539 U. S. ____ (2003), in which a bare majority allowed the University of Michigan Law School to continue to consider race in its admissions decisions. Associate Justice Sandra Day O’Connor concluded, in something we have cited previously:

We take the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317ñ318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.[1]Grutter v Bollinger, Decision of the Court, page 31 of the .pdf file.

I have long said that it was internally both significant and stupid that the Supreme Court allowed something it said would be unconstitutional come June 23, 2028 to be allowable up until that time. Well, it has taken 20 of those 25 years, but the Supreme Court has finally righted that wrong. The Supreme Court finally released its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

To hear the principal dissent tell it, Grutter blessed such programs indefinitely, until “racial inequality will end.” Post, at 54 (opinion of SOTOMAYOR, J.). But Grutter did no such thing. It emphasized—not once or twice, but at least six separate times—that race-based admissions programs “must have reasonable durational limits” and that their “deviation from the norm of equal treatment” must be “a temporary matter.” 539 U. S., at 342. The Court also disclaimed “[e]nshrining a permanent justification for racial preferences.” Ibid. Yet the justification for race-based admissions that the dissent latches on to is just that—unceasing.[2]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 36-37 of the decision, and pages 44-45 of the .pdf file.

Chief Justice John Roberts, writing for the majority, emphasized what we have known all along: the racially biased admissions structure being used by colleges and universities was not moving steadily, or in any way at all, to a terminal date in 2028, and that the schools which were party to this case, Harvard University and the University of North Carolina made no claims that they were proceeding toward that end.

In what may be an underappreciated footnote number 9, the Chief Justice noted:

The principal dissent rebukes the Court for not considering adequately the reliance interests respondents and other universities had in Grutter. But as we have explained, Grutter itself limited the reliance that could be placed upon it by insisting, over and over again, that race-based admissions programs be limited in time. See supra, at 20. Grutter indeed went so far as to suggest a specific period of reliance — 25 years — precluding the indefinite reliance interests that the dissent articulates. Cf. post, at 2–4 (KAVANAUGH, J., concurring). Those interests are, moreover, vastly overstated on their own terms. Three out of every five American universities do not consider race in their admissions decisions. See Brief for Respondent in No. 20–1199, p. 40. And several States — including some of the most populous (California, Florida, and Michigan) — have prohibited race-based admissions outright. See Brief for Oklahoma et al. as Amici Curiae 9, n. 6.[3]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 38 of the decision, and page 46 of the .pdf file.

If roughly 60% of American colleges and universities do not consider race at all in their admissions decisions, then it becomes clear that the consideration of race is unnecessary.

Court decisions are difficult to read, in large part due to all of the internal citations, but also because lawyers are, let’s face it, not usually all that great with prose. Nevertheless, I’d invite all of my readers — both of them! — to follow the link and read the decision.

There will be thousands of articles about this decision, and at least in our nation’s professional media, most will be negative. Solomon Jones in The Philadelphia Inquirer has a column entitled “Affirmative action is racial justice. The Supreme Court ruling is a step backwards. To be blunt, right-wing activists aren’t fighting to abolish racial preferences. They’re fighting to maintain them.” Mr Jones went through many of the reasons he believes we need Affirmative Action, but his column is noteworthy in one major way: he made no argument at all that the Court’s decision was based on a faulty reading of the Constitution.[4]Actually, Mr Jones’ column reads very much as though it was written before the Court’s decision was released, and that he had not been able to read the decision before he wrote his piece.

In a mostly straight news article, Susan Snyder reported on how some Pennsylvania universities will deal with the decision, noting the sole exception the Chief Justice allowed, that in individual admission essays, the way racial discrimination impacted an individual applicant, and how he overcame them, could be considered. Count on admissions departments to start advising applicants to write about that!

The Editorial Board also weighed in on the subject.

But there was one brief point in the decision that seemed very important to me, and which I haven’t seen mentioned by anyone else:

The Court soon adopted Justice Powell’s analysis as its own. In the years after Bakke, the Court repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action. “[A]n effort to alleviate the effects of societal discrimination is not a compelling interest,” we said plainly in Hunt, a 1996 case about the Voting Rights Act. 517 U. S., at 909–910. We reached the same conclusion in Croson, a case that concerned a preferential government contracting program. Permitting “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group.” 488 U. S., at 505. Opening that door would shutter another—“[t]he dream of a Nation of equal citizens . . . would be lost,” we observed, “in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id., at 505–506. “[S]uch a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.”[5]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 35-36 of the decision, and pages 43-44 of the .pdf file.

The Chief Justice spent a significant amount of time, earlier in the decision, noting how the Fourteenth Amendment specified equal protection of the law, and that many subsequent decisions, as well as statements by elected officials and others, meant that equal protection of the law meant that all were equal under the law, regardless of race. With the paragraph above, the Court said that neither “ameliorating societal discrimination” nor allowing “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group” was constitutionally allowable, and that must certainly mean that payments or advantages given to black Americans, from the taxes of white Americans, for the enslavement of their distant ancestors, can be legal.

Robert Stacy McCain noted, amusingly enough, that only Donald Trump, among all living Presidents, is not the descendant of slave owners, as Mr Trump’s family did not arrive on these shores until after slavery had been ended. Since only direct injury, caused by a specifiable person or institution, is the basis for restorative payments, and there are no living Americans who were enslaved, it is impossible, under the Court’s standard to allow all black Americans, none of whom were directly injured by slavery, to be paid by white Americans, none of whom owned slaves and most of whom cannot be traced back to a slaveowner.

Naturally, the Usual Suspects are aghast that the Court said that racial preferences violate the Fourteenth Amendment, but the Court has, for at least 45 years since Regents of the University of California v Bakke tried to massage the Equal Protection Clause of the Fourteenth Amendment to mean something other than what it actually says. Now, at last, the Court has decided that yes, equal protection of the laws actually means equal protection of the laws.
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Also posted on American Free News Network. Check out American Free News Network for more well written and well reasoned conservative commentary.
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References

References
↑1 Grutter v Bollinger, Decision of the Court, page 31 of the .pdf file.
↑2 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 36-37 of the decision, and pages 44-45 of the .pdf file.
↑3 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 38 of the decision, and page 46 of the .pdf file.
↑4 Actually, Mr Jones’ column reads very much as though it was written before the Court’s decision was released, and that he had not been able to read the decision before he wrote his piece.
↑5 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 35-36 of the decision, and pages 43-44 of the .pdf file.