Friday, June 30, 2023

Part I

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‘The Way to Stop Discriminating on the Basis of Race is to Stop Discriminating on the Basis of Race’: SCOTUS Strikes Down Affirmative Action in 6-3 Decision

We knew that yesterday was going to be a very big day at the Supreme Court of the United States. We now know that today, will be a very big day as well, but yesterday the most controversial decision of the court’s term was handed down on a case having to do with college admissions and affirmative action.

Everyone knew it was going to be a big case. It turned out that it was a huge decision handed down 6-3 by the way, dividing the conservative and the more liberal justices on the Supreme Court. But we also see here a fissure in the United States, a worldview clash as well as a policy clash that does indeed demand a much closer look.

The two universities at the center of this combined case where Harvard University, which is the nation’s oldest private university and the University of North Carolina, considered by some claims at least the oldest public institution of higher education in the United States.

You put the two of them together, it pretty much covers the waterfront and in this case, the plaintiff bringing the challenge to the admissions policies was an organization known as students for fair admissions. And we’re going to be looking at how the case came about. We’re going to be looking most importantly about what we see now in the aftermath of the decision handed down.

First of all, what was the decision? The decision was basically the culmination of a very long effort undertaken by the Supreme Court to clarify what was and was not, what is and is not constitutional when it comes to what is often referred to as affirmative action. So let’s just step back and ask ourselves, “What is affirmative action?”

Going back to the period just after the midpoint of the 20th century, there was an understanding that African-American, Black citizens in the United States had been unfairly discriminated against in employment, real estate, many areas of the law, and indeed in college and university admissions, there is no one questioning whether or not that pattern was real. It was real. Everyone knew it. Sometimes this was by official policy. Sometimes it came with the force of law, sometimes it was by custom. In any event, it was found rightly to be unjust.

Of course, then you have the question of, “How in the world you make a broken situation whole? How do you make a wrong situation right?” We need to understand that affirmative action was considered a pragmatic answer to that question. That’s all the policies came into place. With all of the rather understandable controversy about these questions in recent decades, we just need to go back and say, that in the period in which affirmative action was being adopted, these pragmatic ways are seemingly pragmatic ways, policy driven ways of trying to deal with remedying something wrong. These were rather common, and it’s understandable that at the time, people were just trying to ask the question, “How can we make things right?”

The term affirmative action, by the way, has a background itself in the law and in moral theory. In one sense, just about any physical action is according to the laws of physics and affirmative action. But in the legal or the moral context, affirmative action meant doing something rather than nothing. The doing something was understood as a moral imperative or at least the moral argument in favor of it, was that doing nothing would actually be just continuing to an ongoing process of harm against persons based upon their ethnicity and skin color.

So just looking at the equation, looking at the moral challenge as clearly as we can, retrospectively trying to go back and understand what were the people at the time thinking, because this was really pretty much part of a bipartisan consensus. In reality, the two parties on these issues at that time were not as clearly defined, certainly opposing one another as is the case now.

But going back again to the question of policy, if you are looking at an end to legally enforced coerced racial segregation, if you are looking at trying to create a remedy for decades upon decades of that kind of segregation, if you are looking at a way by policy to remedy, you might think that one of the things you would do would be, for instance, when it comes to employment, coming up with goals and what was called affirmative action. So doing something rather than just doing nothing. Doing something in service of what was claimed to be remedying a moral wrong, you would advantage persons who had been previously disadvantaged.

And when it comes to college admissions, and we understand how important long-term, for a lifetime and for the entire society, the college admissions question is, you understand that the affirmative action logic was pretty much the same, but I stated that issue as clearly as I could because almost immediately the problem emerged. And the problem is this.

If you’re talking about a finite set of goods, whether it’s a finite number of jobs, a certain kind of jobs, a finite number of say executive positions, or if you’re looking at college admissions, there’s a finite number of openings of you might say, in the old language desk in a classroom. And so you are looking at a finite good. If you are taking affirmative action, action affirmatively to privilege certain groups, you’re doing so at the expense of other groups. But there’s another problem, and that is the problem of chronology.

The problem of chronology is that the situation, and by the way, a biblical understanding of sin helps us to understand this. If there is a very deep and lasting pattern of sin, it is incredibly excruciatingly difficult actually to remedy that. So take affirmative action, it made sense at the time to the people making the argument. And again, this was a rather bipartisan issue at the time.

It made sense to say, “Look, we’re going to have to look at this over a long period of time and we’re going to have to remedy past wrongs by looking at present, and in particular at future say, executive positions in the workforce or at least much desired positions in the workforce and desired positions for admission, especially at elite or rather distinguished colleges and universities.” And so the logic was we’ll try to remedy the past wrongs by acting in the present and in committing ourselves to act in the future in such a way that we will privilege those who had been de-privileged or unprivileged. But at the same time, that also meant unprivileging some of those who had been privileged.

But here’s where the chronological problem really comes in. You’re not talking about the same individuals, that turns out to be an entirely new moral problem. For these purposes, given this case will just focus on college freshmen. 17, 18 years old, they were not the oppressors, they were not those who had done wrong to others, but by the time they show up for the competition for a limited number of elite admission positions in colleges and universities, you had people who were told, “Look, in order to remedy past wrongs, you’re not actually going to gain admission to this university. In order to follow this kind of policy, you are going to have to go to another university. Someone is going to take your place.” And that’s exactly what it meant and that’s exactly what it felt like.

Now, one of the things Christians understand is that in a broken world, you’re looking at just manifold multiple brokenness. And in this case, this is one of the things we see. We can understand the logic behind those who said, “In order to try to make repair to remedy a past wrong, we will come up with affirmative action.” The problem is, that an entirely new generation was wronged in a different way. There’s another dimension to the chronological problem here, and this is not one you see conceded much in terms of the media conversation.

The other problem is that the demographics of the entire country change over time. So if you look over the last 50 years, in terms of the demographic profile of the United States, it is very different than it was when the architects of affirmative action put it into place. So to make the matter very plain, there’s a radical increase in the number of Spanish-speaking people, Hispanic, Latino, Latin people in the United States. There’s an enormous increase in the number of, and even in the percentage of those who are now Asian Americans.

And as you look at this, what both sides recognize beyond reputation, is that there’s a culture and ethnic pattern. As you look at the composite scores on standardized tests and you look at grades and other objective academic considerations, they’re often better prepared and more ready. They’re actually more competitive in that race for a finite limited number of seats at elite universities.

And so what’s really interesting about the case that was handed down yesterday, is that much of the argument and much of the legal structure of the case had to do with discrimination, wrongful discrimination against, for example, Asian American applicants who did not get the coveted positions in admission in some colleges and universities that were given to others on the basis of affirmative action. You look at the objective numerical, say, grade point average and other considerations. Well, you can see how the argument lines up. And you also have a very clear chronological problem when you have people in authority making the argument that in order to remedy it was claimed past discrimination will have to discriminate differently now.

Now, the Supreme Court has been awkward on this issue for a very long time, but it has basically failed to come up with any consistent jurisprudence until yesterday, as to how to deal with this. Previous cases before the Supreme Court basically came to the conclusion that the goal of the affirmative action policy must be right, and yet it’s wrong to discriminate wrongly in situations where the criteria are wrongly applied, but there could be situations in which they are rightly applied or at least less wrongly applied. And if you’re confused about this, well it’s because the court’s jurisprudence was incredibly confused.

The reason the present challenges came to the Supreme Court together in the action yesterday is because there was a concerted effort to try to confront what was considered now to be an unjust situation. And here’s where you just have to admit the two opposing sides have two very different conceptions of justice.

It’s hard to imagine an issue that could be more central to the Christian understanding of morality and worldview, because when you’re talking about justice, you’re talking about one of the most honored words in the scripture. You’re talking about an attribute which is perfectly held alone by the creator, and you’re talking about an attribute that he has made a matter of human accountability, human beings made in his image are accountable to justice.

Here you have two rival assertions of justice. Some who are arguing that the perpetuation of affirmative action is just justice requires it. And then as it turns out, the majority on the court in this 6-3 decision said it is unjust for race or ethnicity to be considered in this context. It is a violation of justice, for the affirmative action plans with this race based and admittedly sometimes basically a quota program to go forward. Race was being explicitly taken into consideration.

Now, the key to understanding the decision that was handed down yesterday is not just the math 6 and 3, that’s not irrelevant. The important thing to understand is basically one justice, and that one justice in this case is the chief justice of the United States, John G. Roberts Jr. He has been declaring himself pretty clearly on this issue consistently.

Most famously in a previous decision, in his opinion, the chief justice said one line, which is about as clarifying as a line could be. That line is this. “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” The argument for affirmative action is that wrongful discrimination took place in the past. So now we will exercise a remedial discrimination in order to make progress going forward. But as the plaintiffs to this case made very clear, there’s a new class of victims. The new class of victims are those who are academically qualified and should have those positions, but are denied them simply because of the affirmative action considerations.

Part II

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Two Moral Worlds Respond to SCOTUS’s Affirmative Action Decision: Dueling Definitions of Justice Argue Over the Judgement of the Court

Now, when you listen to what was taking place in terms of so much of the talking head, so much of the commentary, the response yesterday, just to give two examples, the President of the United States Joe Biden went to a microphone at 12:30 yesterday eastern time in order to make very clear his outrage at the court’s decision.

Now, the White House knew it was coming, it was predictable. The White House was basically ready to respond and it spoke to its political base. The president spoke to his political base clearly by denouncing, condemning the court’s majority for coming up with the end of affirmative action at least defined by the criterion of race as a factor in college admissions. The president, however, didn’t ever acknowledge the question of justice when it comes to persons who would’ve lost or did lose admissions positions because of those policies.

Indeed, the president went on to say, and this is what’s really interesting. The president went on to say in his rather brief remarks, the president said, “Look, these elite universities required persons to prove that they were academically qualified before they could even get to the admissions point.” Well, that’s sort of true, but it’s sort of false because there are far more people who on paper objectively are say, academically qualified than will gain admission.

So the admissions program in all of these elite universities, and in some cases it’s kind of like a dark chamber, you’re not exactly what they’re using, but many of these universities were explicitly straightforwardly using race as a category in order to say, “Okay, we’re going to have…” We’ll just come up with a number. “We’re going to have a hundred seats in the entry class, there are 1700 applicants. So all of them have basically very good, very high SAT or ACT scores. They have very good grades, there’s an extraordinary number who are actually valedictorians of their senior class. The issue is how are we going to make other choices based upon other criteria?” And this is where what the court said yesterday is that, race explicitly cannot be the deciding or even a deciding factor in weighting an admission application when it comes to comparison with others.

Now, there is no way to take subjectivity entirely out of this process. In many of these elite university settings, there’s an interview that takes place with the student. There are other considerations. Finances are another big consideration because after all, you’re talking about a very expensive commodity as well. And yet you also have the personal essay, which is increasingly used, and by the way, we’ll talk about this in a subsequent edition of The Briefing.

Many of these universities are now using these essays in such a way that entry to these very prestigious universities comes down to how interesting and traumatic your essay can be. There are actually consultants telling students or their parents, “What you need to do is to go and volunteer in a situation, in a say third world or developing country in such a way that you have a good story and by the way, a little danger thrown in will be good, and a little bit of ideology sprinkled in might be even better.” So in other words, all of that is not going away and the majority opinion, yesterday’s decision understood that, but at the very least, you can’t use race as a tick off factor when it comes to weighting applications for admission in these elite universities.

I mentioned the Democrats who are speaking Cornel West, who had taught at Harvard University, one of the universities covered here in this decision he took to MSNBC yesterday, and he basically covered the entire waterfront of racial discrimination and all the issues. What was never acknowledged is the fact that when you’re talking about the specific limited question of admission to universities and colleges, there are people who are winners and there are people who are losers. The question is, what would be a truly just system for at least attempting to come up with a fair and righteous way to decide who gets these very limited admission seats and who doesn’t?

One other moral issue that comes up in this was raised by Edward Bloom, who leads the organization behind the plaintiffs bringing these challenges eventually to the US Supreme Court. Edward Bloom made the point in his public remarks yesterday that legacy admissions are another big issue of equity and justice, and these legacy admissions have to do with the fact that in many of these elite universities, the children of graduates are given their own weighting or advanced standing. Then let’s just state the obvious. That’s not fair either.

If you’re looking at the definition of loading the dice, it’s hard to come up with a definition more classic than that. It’s going to take some time to unpack this decision and to understand its impact upon our society, not just when it comes to college admissions, but to the larger context.

Part III

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Unprecedented Personal Comments in the Affirmative Action Opinions by Justices: Justices Thomas and Jackson Speak Their Minds

But before we leave this, it is also important to say that the decision handed down yesterday came with opinions that reveal a level of antipathy and engagement between members of the court. That’s pretty much unprecedented, certainly in terms of the kind of language used.

Justice Sonia Sotomayor said this, “Without any new factual or legal justification, the court overrides its longstanding holding the diversity in higher education is of compelling value. To avoid public accountability for its choice, the court seeks cover behind a unique measurability requirement of its own creation.” Elsewhere, in her dissent, Justice Sotomayor described the majority opinions, quote, “Nothing but an attempt to put lipstick on a pig.” End quote.

The engagement between Justices Clarence Thomas and Ketanji Brown Jackson, his in a concurring opinion, hers in a dissenting opinion, it was particularly hot. Justice Thomas wrote, quote, “As she,” Meaning Justice Ketanji Brown Jackson, “as she sees things, we are all inexorably trapped in a fundamentally racist society with the original sin of slavery and the historical subjugation of Black Americans still determining our lives today.”

In her own opinion, Justice Jackson said that as for Justice Thomas, quote, “Justice Thomas ignites too many more straw men to list or fully extinguish here.” She also said that in her view, Justice Thomas had issued a, quote, “Prolonged attack, which responds to a dissent I did not write in order to an assail admissions program that is not the one UNC,” That’s University of North Carolina, “has crafted.” End quote.

She went on also to say, “Justice Thomas’s opinion also demonstrates an obsession with race consciousness that far outstrips my or UNCs holistic understanding that race can be a factor that affects applicant’s unique life experiences.” End quote. I believe that Justice Thomas is right in this situation, is just very interesting. It’s indeed important to recognize how volatile this situation is, how controversial this issue and policy is, and you’re looking at what I can only say is at least an uncommon level of personal engagement between two justices of the court in this case.

Part IV

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Can an Evangelical Postal Employee Be Forced to Make Deliveries on Sundays?: SCOTUS Rules Unanimously That Reasonable Accommodations Must Be Made

In the future, we will be looking more at this case and it’s meaning over time. But finally, today I want to point out that the Supreme Court handed down another important decision yesterday. This one in the case known as Groff vs. DeJoy and his role was postmaster general.

In this case, it was a unanimous decision, that’s significant, so it was 9-0 with all nine justices of the Supreme Court ruling that the postal service had violated Title VII of the Civil Rights Act of 1964 in discriminating against an evangelical Christian who felt it was wrong to work on Sunday.

The background to this is a series of decisions and policies. The man had joined the staff of the postal service with the understanding he would not work on Sundays when the US Postal Service does not in its own name make deliveries, but subsequent to taking the position, two things happened.

Number one, the postal service signed an agreement with Amazon that would require Amazon deliveries on Sunday, and also the Labor Union of postal workers came up with a different plan in terms of the distribution of work schedules over seven days rather than six. The charge made by Gerald Groff, who had resigned his position but then sued the postal service. The point he made, is that the Civil Rights Act of 1964 Title VII requires reasonable accommodations to be made to workers on the basis of religious conviction and participation. His charge was the postal service had not met the barrier of a reasonable accommodation.

There were warning cases in the past and there were some precedents that had to be overcome. What’s really significant here is that this was a unanimous ruling by the Supreme Court. In the court’s ruling unanimously, the court pointed out this was its first opportunity in nearly a half century to explain how these issues should be balanced, and that is how you have the postal service making these deliveries regardless of all the complexities and how you make reasonable accommodations for a worker.

The unanimous character of this ruling indicates how the issue has basically developed over time. You wouldn’t have expected, even given a court like this, you might say, especially given a court like this, you might not have expected this kind of unanimous ruling, by the way, in a way that is entirely healthy and underlines constitutional rights, the Bill of Rights, and frankly, I think the intention behind the Civil Rights Act itself, this case clearly means that the court is saying that reasonable accommodation must be made by employers. Must be made, and they may not be so minimal that their inconsequential and the employer can’t claim that a reasonable accommodation is just too expensive or unworkable for the workplace.

In this case, there were clearly opportunities for the postal service to make reasonable accommodation. It just refused to do so. Unanimously, the Supreme Court of the United States said that’s a violation of religious liberty, but in particular, it’s a violation of Title VII of the Civil Rights Act. You can’t do that, so stop it.

There will be more to look at as we think of these cases going in the future, and there are big cases to be handed down. One of those cases has a lot to do with religious liberty and Christians in the workplace, and that’s 303 Creative, expected to be handed down today, and then the ruling on the Biden student loan forgiveness plan. Again, you can expect a lot of controversy on that one, so get ready. It’s going to be a pretty hot day in terms of public debate.

So as always, we come to the end, more to think about, more to talk about. And this is the last day of June in the year 2023. That brings to a conclusion the 2022-2023 season of The Briefing. We will be back with a brand new season of The Briefing, Lord willing, on August the 1st, 2023. I hope that you and your family have a wonderful July.

Here’s what we know. The issues are going to be flying at us all the time, and by the time we come back for the first episode on August the 1st of 2023, you can just imagine there’s going to be a lot for us to talk about and think about. I also want to invite you, again, most of you already do, just go to albertmohler.com, hit subscribe, and we’ll be right at you as soon as the season begins.

I want to end by saying, as I always do, thank you to you, the listeners, for giving your time and attention to The Briefing. I’m thankful that you find it helpful. I wanted especially to thank my wife, Mary, without whose understanding, this just would not be possible. I missed all kinds of things, or I’m late to all kinds of things simply because of The Briefing. I love you, sweetie. Appreciate the understanding.

I also want to thank Graham Faulkner, producer of The Briefing, and I want in a special way to thank Ryan Modisette, who’s been the engineer for The Briefing since December of 2017. That’s five and a half seasons. Let me put a couple of other numbers to that. That means 1,261 episodes in which he served as audio engineer, and that also means nearly 81 million downloads of The Briefing. 81 million. What an incredible number.

Ryan and his wife Vicky, are going to be moving elsewhere where she’s taking a teaching position in a university and Ryan’s continuing to pursue his PhD in Systematic Theology. I just want to take this opportunity to say a very sincere thank you to Ryan Modisette. It’s been a pleasure to work together, often, mostly when other people are sleeping.