Equal Protection, Affirmative Action and Effecting Generational Change

by James C. Sherlock

America is the most successful nation in the history of the world because of the freedoms and rights guaranteed by our Constitution.

More than a hundred other nations have emulated the American Constitution.

Without constitutionally guaranteed freedoms and rights, we would be chained to the whims of the state. Most immediately to the whims of the executive branch. There would be precious little for the judicial branch to protect.

A recent Supreme Court decision found affirmative action in college admissions to be unconstitutional under the 14th Amendment, Section 1:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Justice Roberts for the majority ruling that the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause:

Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

Three justices disagreed.

Justice Sotomayor read her opinion from the bench — a sign of strong disagreement. An excerpt:

Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.

Note that Justice Sotomayor, as always careful of the words in her opinions, chose “endemically” to modify “segregated.” Oxford dictionary: “regularly found and very common among a particular group or in a particular area.”

That is different than the word “systemically” — Oxford: “in a basic and important way that involves the whole of an organization or a country and not just particular parts of it.”

All can agree with Justice Sotomayor’s characterization. America is observably endemically segregated among particular groups in particular areas. Not all of the people of color.

Court rulings, in total, let Americans give help to economically and educationally disadvantaged areas and to the poor in general.

America, including its institutions of higher learning, can and should follow that path so clearly available.

But we have an alternative to assess. Canada in its own, relatively recent constitution specifically permits affirmative action laws as a defined exception to equal protection. We will look there.

Canada guarantees “equality rights.” Canada did not make a Charter of Rights and Freedoms part of its Constitution until 1982. It is a shorter list than provided for in the United States Constitution.

But when the Canadians wrote it, they dealt specifically with “Equality Rights” as Section 15.  Section 15(1) is subtitled “Equality before and under law and equal protection and benefit of law“.

Section 15(2) specifically permits affirmative action programs. Which is a right only for:

those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [Took effect in 1985.]

Oxford Dictionary: Disadvantaged (verb): “placed in an unfavorable position in relation to someone or something else.”

Thus 15(2) provides an exception to the “equal protection” guaranteed in 15(1), but very fuzzily.

Note that the Canadian Constitution does not say some group or some law must have placed such people in a disadvantaged position, or what the disadvantage is, but just that they find themselves disadvantaged in some undefined way compared to someone else.

Another complication: Under the Canadian Constitution, enumerated in ss. 92, 92(A) and 93 of the Constitution Acts, 1867 to 1982, civil rights is an “exclusive power” of the provincial legislatures.

The constitution must then assume by its broad language that each province will be very specific when writing laws in support of the “Equality Rights” provision.

Maybe that is not a good model for America.

American options. America could amend its Constitution to make an affirmative action exception. But since most Americans currently polled oppose affirmative action, that is not going to happen any time soon, or maybe ever.

So, for affirmative action, the left pins its hopes on gaining a progressive majority on the Supreme Court. To decide that the 14th Amendment does not mean what it says. To restore “decades of precedent” built by liberal courts.  With narrow majorities.

Justice O”Connor, voting with the liberals, expected affirmative action to be temporary. From her opinion in Grutter v. Bollinger:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.

So how, exactly, would a progressive ruling read?

  • Would affirmative action remedy racial disadvantages alone? If so, would it be limited to African Americans? To African Americans directly descended from slaves? Progressives consider race to be a social construct.
  • So is it “colour” as the Canadians spell it? Many Indian-Americans are dark-skinned, as are many Pakistani-Americans. Indian- Americans have the highest median household incomes of any specific national origin in the country — far higher than Americans defined by the Census Bureau as “White,” But they, as a group, have not been in America for long relative to, say, native tribes, some European-Americans and some African-Americans. Is there to be a check of family trees?  DNA samples?
  • Do those disadvantaged by national or ethnic origin include Hmong- Americans, who were persecuted in Southeast Asia for hundreds of years, fought side-by-side with us in Vietnam, spoke a language all their own and came here with nothing in the 1970’s? How about Uighur-Americans, whose families are enslaved in China?
  • A progressive court would certainly find that a list of gender and gender identity claims are eligible for affirmative action. How many categories are to be on the list? Could a person raise a hand and qualify? Or is it to be like competitive swimming — have to live the lifestyle for a year — or something else?

What disadvantages would be specified as subject to affirmative action? Economic? Educational? Health? Social?

How much mitigation is enough? How will the mitigation of the damages be defined, so that affirmative action may end?

Who pays? Who receives?

Good luck.

Bottom line. I have spent my journalistic career advocating for improvement of the lives of poor people, especially children, through better education and health care.  

As a practical matter, poverty has tangencies with race; but not all members of any racial group are either poor or otherwise disadvantaged.

As I have tried to illustrate above, protected classes are too difficult to define and too widely diverse in their own circumstances to satisfy most Americans if they are to be asked to provide special support to groups “disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability“… and inevitably gender.

Affirmative action by race or by any other “protected class” designation is too blunt an instrument by far.

We should do what we can do and what matters: preserve equality under the law for all, and provide special help to those individuals disadvantaged by economic circumstances. To the degree that the poor are gathered in specific neighborhoods, and many are, help the neighborhoods.

Security is a necessary condition. Improved education and healthcare will have lasting, generational effects. They also provide unlimited upside. They are never over.

We don’t need a court decision or constitutional amendment to provide them, and the vast majority of Americans are in support of such measures.