The US Supreme Court has ruled against affirmative action in universities, arguing that such programs violate a part of the 14^th Amendment of the US Constitution which states that no state shall deny any person “within its jurisdiction the equal protection of the laws”.

Let’s be clear at the outset:

• Affirmative Action does indeed represent racial discrimination, but as a deliberate policy to achieve equality and diversity.  Affirmative Action requires us to accept a limit on our human right to be treated as equals, regardless of race.
• To govern is to choose.  There will be winners.  There will be losers.

We, as a population, have long accepted government limits on our rights – they’re called laws – as a condition of participating in a democratic state.  We, as a population, have the constitutional power to select our government, and we require that government to protect due legal process and core human rights.  The government requires us to respect laws and norms of behaviour.

It has never been a secret that affirmative action programs limit human rights of non-racialized (white) people.  That is precisely what affirmative action does: tilts the playing field in favour of racialized groups through provision of favored treatment to those disadvantaged by historic discrimination and bias.  The objective of the tilt is to create a more equal and harmonious society for all racial groups.

When a court invalidates a practice such as affirmative action on the grounds of discrimination, it is asserting that racial equality rights are more important than the social policy objectives of duly elected governments.  I believe this to be an abuse of power by the Court.  You cannot simply brand affirmative action illegal because the procedure deliberately, as a matter of social policy, invites inequality to address larger systemic inequalities in society.  That invalidates the rights of elected governments to use reasonable means to foster social equity.

Cui bono?  Who benefits? The Court decision benefits those who already have privileged access to material, health and social benefits: the affluent, usually non-racialized (white).  And this decision is issued under the guise of protecting human rights.  The impact of the decision may well be further failures in social cohesion.

In fairness to the Court, its decision to invalidate affirmative action programs is far from absolute.  The Court appears to argue that specific flaws in affirmative action programs are the problem:

1. There are no measurable objectives for such programs
2. Race is employed in a negative manner
3. There is racial stereotyping
4. There are no meaningful end points to the programs

Points #1 & #4 are closely related since they both refer to program management.  I do not understand why such criticisms invalidate affirmative action programs.  There are many government programs without measureable objectives or specific end points: social welfare programs would be an example.  The lack of objectives or end points stand as cogent criticisms, but hardly represent fatal flaws.

Points #2 & #3 are not flaws but features.  As discussed above, positive discrimination involves treating races differently: that is the point of affirmative action.

Obiter dicta, one should note an element of inconsistency if not hypocrisy in the US Supreme Court’s decision.  While affirmative action in favour of disadvantaged groups is found ultra vires, other university programs which allow selection on other grounds than academic merit are not challenged.  Many universities grant admission preferences for exceptional athletes, for the offspring of alumi/ae, or for nominees of significant financial donors.  In effect, university programs to benefit  the disadvantaged are disallowed; university programs to benefit the advantaged are allowed.