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Thread: Gorsuch Paves Way for Attack on Affirmative Action

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    Gorsuch Paves Way for Attack on Affirmative Action

    It seems the liberal judges overlooked something in Gorsuch's textualist argument. Oops.

    Gorsuch Paves Way for Attack on Affirmative Action

    Does the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action?

    That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost.

    Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

    That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.


    ...That raises some obvious questions.

    First: Why did the four justices usually characterized as liberal — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — join Gorsuch’s opinion? Why didn’t they write separately, questioning his textualism?...

    Second: Is affirmative action really in deep jeopardy? If the court is going to rule it out of bounds, it will have to overrule its 1979 decision. Some of the justices might be inclined to think that the decision was wrong at the time, but that precedents deserve respect.

    ...
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    They may think the time for AA has come and gone.
    Any time you give a man something he doesn't earn, you cheapen him. Our kids earn what they get, and that includes respect. -- Woody Hayes​

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    Quote Originally Posted by DGUtley View Post
    They may think the time for AA has come and gone.
    I think SCOTUS has mentioned that is coming in a case not long ago.
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    The high court has been signalling that the end of affirmative action was in sight for some time. In 2014 it ruled that, as Chief Justice Roberts wrote, "There is no authority in the Constitution of the United States or in this court's precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters." At that time eight states had banned affirmative action, and the number is now nine. It is no great leap to imagine that a national ban, upholding the right of all Americans to equal treatment regardless of what state they live in, is coming.
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    California Reconsiders Affirmative Action Ban: "California voters may get a chance to reconsider the state's ban on affirmative action in public education and employment. A bill that would put the question back on the ballot passed the State Assembly this week, and the University of California system has thrown its weight behind restoring affirmative action."

    University of California votes to restore affirmative action nearly 24 years after it was outlawed: "The unanimous decision was reached by the school's Board of Regents on Monday, nearly 24 years after it was outlawed by Proposition 209, which banned the consideration of race and gender in admissions in California."
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    ….so, we're going to discriminate based on race? My oldest was secretly AA'd out of a PharmD program at an Ohio state university. I had to sue the university. They lure these kids there promising them that they are competing for x spots when they are really competing for y spots b/c of set-asides. She transferred, became a Pharmacist and we settled - they paid.
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    Quote Originally Posted by DGUtley View Post
    ….so, we're going to discriminate based on race? My oldest was secretly AA'd out of a PharmD program at an Ohio state university. I had to sue the university. They lure these kids there promising them that they are competing for x spots when they are really competing for y spots b/c of set-asides. She transferred, became a Pharmacist and we settled - they paid.
    The NEW Title VII should put a stop to that.
    Tradition is not the worship of ashes, but the preservation of fire. ― Gustav Mahler

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    Quote Originally Posted by Chris View Post
    The NEW Title VII should put a stop to that.
    We were in court, in mediation. The state's lawyer would come in, say that they didn't do anything wrong and then make an nickel dime offer. I would respond: "Give me one legitimate reason why she didn't get in and I will dismiss today." After 5 hours, he pulled my partner out into the hallway and said that "Dave's crazy". He replied: "You messed with his kid, he doesn't care what it costs him. By the time he's done with the Dean's deposition, he will never forget his daughter's name." They settled.
    Any time you give a man something he doesn't earn, you cheapen him. Our kids earn what they get, and that includes respect. -- Woody Hayes​

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    I work in a world of death and dying. I am not sure working in the law would be an improvement.

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    Quote Originally Posted by Perianne View Post
    I work in a world of death and dying. I am not sure working in the law would be an improvement.
    It would be much more dangerous.
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