Blacks blew affirmative action all on their own. Now to the next phase …

The Law

This evening, MSNBC presenter Joy Ann Reid shared that she was accepted into Harvard University as a result of affirmative action. She also noted that two U.S. Supreme Court justices, Clarence Thomas and Ketanji Brown Jackson, also were admitted to Yale and Harvard, respectively, as a result of affirmative action.

Ms Reid then questioned what she viewed as the hypocrisy of her white classmates who criticized her admission as undeserved while they themselves enjoyed the status of legacy admission either based on daddy’s money or that granddad also attended Harvard.

Ms. Reid’s discussion on affirmative action stems from the 29 June 2023 opinion of the U.S. Supreme Court that the admissions policies of Harvard University and the University of North Carolina violated the Equal Protection Clause of the 14th Amendment.

That portion of the 14th Amendment prohibits any State from denying “to any person within its jurisdiction the equal protection of the laws.” And to get to its holding that the admissions processes of Harvard and UNC violated the 14th Amendment, the Court included in its rationale that the core purpose of the 14th Amendment was to eliminate all governmentally imposed discrimination based on race.

The Court, citing prior opinions, identified three criteria that the admissions policies did not follow: compliance with strict scrutiny; avoidance of stereotyping an applicant or disadvantaging other applicants of another color; and that the policy ends.

The criteria I took most interest in was strict scrutiny. Strict scrutiny is a two-pronged test. The first prong asks whether the racial preference is used to further a compelling government interest. The second prong asks if the use of race is necessary to achieve that interest.

According to the Court, the compelling interests expressed by Harvard and North Carolina could not be “judicially reviewed” by the court. Training future leaders, acquiring new knowledge based on diverse outlooks, preparing engaged and productive citizens, etc., sounded like commendable goals, but were not “sufficiently coherent for strict scrutiny.”

In other words, the word salad needed the protein for fueling judicial review.

I believe black leadership failed to do two things. First, black leadership has failed to stay ahead of the media. Mainstream media has been reporting that affirmative action has been banned. Nothing of the sort has happened.

What the court said is that the admissions policies failed because they did not comply with strict scrutiny; did not avoid stereotyping; and have not yet ended. Make these corrections and you may get your policy back. Black leadership should be out front putting blacks at ease on the issue of whether affirmative action has been banned. It has not.

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Second, black leadership should have been focused on managing these legal criteria. There does not seem to have been an on-the-ground strategy for shoring up the compelling government interests. Blacks were not adding the protein. This, in my opinion, is the result of letting others who do not have your interest as paramount take the wheel.

Blacks blew this one. The next phase is for blacks to take control of the policy agenda; to go into the courtrooms and legislatures to add meat to the compelling interests of the State.

But first, you have to determine what those State interests are.

Alton Drew

3 July 2023

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