I want to add a footnote to Charles Krauthammer’s June 27 column welcoming the Supreme Court’s Grutter decision blessing “affirmative action” as practiced in elite educational institutions. I yield to no one in my admiration for Krauthammer’s contribution to American public life. However, I found the column peculiar and unpersuasive. Krauthammer celebrates the fact that the Supreme Court has not left the resolution of the “affirmative action” debate in the political process of the fifty states.
Putting the constitutional issue at the heart of the case to one side, Krauthammer fails to acknowledge that the issue before the Court was addressed in the political process — by Congress — if not exactly the state political process to which Krauthammer bids us. It therefore turns facts on their head to suggest that if the Court struck down the discriminatory schemes such as those institutionalized in Michigan’s admissions programs, the Court would “short-circuit the democratic process,” as Krauthammer asserts.
In Title VI of the Civil Rights Act of 1964, Congress expressly prohibited racial discrimination of any kind by educational institutions like the University of Michigan that receive funds from the federal government: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
Anyone familiar with the legislative history of the Civil Rights Act of 1964 — the relevant part of which is set out at length with respect to Title VII by then-Justice Rehnquist in his dissent in the Weber case — knows that Congress was aware of the possibility that institutions might discriminate against non-minority individuals and expressly prohibited such discrimination through language such as that in Title VI (and in Title VII, which the Supreme Court has also willfully misconstrued). Through such language Congress enacted the principle of colorblindness as the law of the land. This was the great principle around which the people of the United States coalesced in 1964 and to which they have remained committed subsequently.
The possibility that the federal civil rights law might be used by institutions or the government to engineer racial quotas or preferences was the great “bugaboo” that the Southern opponents of the Act (like Senator Sam Ervin) constantly invoked. With respect to Title VII, for example, the bill’s floor leader, Minnesota’s own Senator Hubert Humphrey (who characterized this argument as a “bugaboo” — let’s call it the “bugaboo” that became the law of the land), stated:
“The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that quota systems may be established to maintain racial balance in empoyment. In fact, the title would prohibit preferential treatment for any particular group…”
If the issue in the Michigan cases were to be taken up again by Congress or by the states, as Krauthammer suggests, is it possible that they could be any clearer in addressing them than Congress was in 1964 when it stated that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”?
When the Supreme Court of the United States willfully refuses to enforce the law of the land — law as clearly stated as the Civil Rights Act of 1964 — it seems to me that the political remedy is more properly the removal of the offending justices from office rather than the one to which Krauthammer relegates us. That the Supreme Court has instead blessed the massive institutional resistance to the law of the land — another fact not quite acknowledged in Krauthammer’s column — is a catastrophe the consequences of which, as Churchill said of the Munich Agreement, “will travel far with us along our road[.]”
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
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