This morning, the Supreme Court of the United States handed down another 6-3 ruling, including the conservative majority and the moderate Chief Justice, striking down Affirmative Action in higher education as opposed to the principles of the Fourteenth Amendment.

(Incidentally: Groff v. DeJoy was also decided today, 9-0 in favor of the plaintiff, who sued on the basis of religious discrimination for being disciplined for choosing not to work Sundays. This is not minor, and should not be neglected in your attention.)

But what does this mean, and what is implied? What institutions are shaken, which are weakened and which strengthened? For this, a deeper analysis of the ruling is essential.

It goes without saying too often, and thus occasionally ought to be explicitly restated: There’s general agreement over most of the finer legal points raised in cases like this. Most of what will be repeated ad nauseum by the talking heads on major media has no bearing whatsoever on the decision. Even the “experts” that will be lined up by the networks to explain the issues are chosen not for their erudition but instead their ability to create good copy and generate ratings. News in this country is an entertainment industry fine-tuned to sell advertising, and thus is no longer designed to inform the public.

The public discourse will inevitably revolve around two major points, neither of which have much basis in fact:

1. The Court is presently unbalanced thanks to Trump and McConnell, and thus will be sending down invalid decisions unless and until the Democrats re-take the Senate and hold it.
2. The impact of this decision will set back race relations in this country by seventy-five years.

The first of these is inapplicable here (and, indeed, in most cases) largely because the legal arguments aren’t themselves in any serious dispute, but rather the social ramifications. (More on that later.) The second is plainly incorrect, as the decision in Students v. Harvard explicitly reinforces the overturning of Plessy v. Ferguson in Brown v. Board of Education, where it was affirmed that, as Justice Roberts says, “Separate cannot be equal.”

It cannot be too strongly stated: Everything you’re about to see from every news source, be it the unspeakably racist Fox News or the propaganda mill by another name that goes by MSNBC, is going to be, if not an overt lie – and we’ll see several of those – then at the very least a serious attempt to not merely twist the truth but also bend, fold, spindle, and otherwise mutilate it in service of partisan politics… and ratings.

The Basics:

The Roberts opinion, to which six of the nine justices subscribe, states clearly: Racial prejudice, regardless of its intent, is explicitly contrary to the equality clause of the Fourteenth Amendment, and Affirmative Action qualifies as racial prejudice under the law.

It would be unjust to fail to mention a very valid point raised in the dissent, to wit: that “The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind.” As Sotomayor observes, that was the very premise on which the action that brought about the Brown decision was based. Mere neutrality is sometimes quite demonstrably insufficient to provide equality of opportunity, and on occasion it is necessary for active steps to be taken in order to reverse the impact of unjust actions, standards, systems, or conditions. There is in this country a long tradition of laws designed specifically to restore such balance where it is lacking.

However, as Justice Thomas observes in his separate opinion, it is disingenuous to consider that any such progressive actions could be taken to favor one racial or ethnic group without imposing a cost on another. He cites instances where students who have the evident misfortune of having had Asian ancestors were denied acceptance in favor of those with “black or Hispanic” ancestry. Thus, it seems plain, at least to him, that however well-intentioned Affirmative Action programs might be, they are at the very least themselves unbalanced in their final application.

Roberts bypasses the specifics and explains that, as colleges are unable to permit the courts access to their deliberations and processes, which are not metrics-based, the courts in turn are unable to permit an exception to the Equal Protection Clause. “Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.” He acknowledges Thomas’s point and calls out Harvard’s attorneys for explicitly stereotyping in their position and arguments.

One of the most telling points raised by Roberts is that present practices have “no end point”. If a temporary adjustment were to be made necessary, he concedes that, as Sotomayor argues, a temporary active remedy is not only permissible but sometimes even mandatory. (Thomas and Kavanaugh appear to disagree on that point.) However, since the admissions processes in question produce nothing demonstrable aside from precise adherence to reflect general population statistics within the student body, it is apparent that, not only are they arbitrary in nature and flawed in design, there is no reason to think that they would be at all temporary in nature.

Finally Roberts sternly admonishes the dissenters for their failure to fully and equally consider precedent in a manner that smacks of intellectual dishonesty. Here he cites, and even explicitly reinforces, such decisions as Loving, Croson, Hunt, Yick Wo, Shelley, and Bolling. He explains that their principal argument has been repeatedly and reliably considered and rejected. “We understand the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it.”

As such, it is the considered opinion of The Not Fake News editorial staff that not only is the Roberts decision the technically correct one, but also that the dissenters are perfectly aware of that fact. (NOTE: This is our opinion, and we stand by it. We do not, however, demand that our readers must agree. Instead, we urge them to do their own reading and make up their own minds — which doesn’t mean “go to your favorite podcaster or pundit and have them explain it to you”. That is the precise opposite of making up your own mind.)

The Implications:

The obvious one is this: The era of Affirmative Action in college admissions is over. While the Court’s decision permits explicitly of the exercise of individual discretion, especially to make temporary redress of existing problems, it declares as invalid any process that considers race as a primary negative factor. Thus, while under this decision as stated, it would be possible for Harvard to create an academic opening to permit a specific individual to attend in order to correct a problem of racism, it could not do so by removing opportunities from others on the same basis.

As an aside: This is not as radical a change as may be suggested. Several states, including California (hardly known for its conservative approach to the law), have struck down Affirmative Action programs on their own, and they presently exist only as survivals in a very few institutions. And, let’s face it: The number of poor people of whatever race or ethnicity accepted to Harvard is likely to remain small.

Since such decisions as Loving are not merely relied upon but explicitly reinforced, none of the horror stories about to be spread that suggest interracial marriage will be struck down next have any basis in fact. That will certainly be mentioned; when it is, it will be either honest ignorance or, more likely, fearmongering propaganda of the filthiest sort.

However, it must be granted that other implications can be more far-reaching. There are obvious parallels between college admissions and race-based hiring quotas; surely those will not survive if challenged. Similarly, the practice of segregated submissions windows, ubiquitous among domestic fiction publications, will collapse under similar scrutiny. These are obvious, even self-evident.

We are reliably informed that arguments even now have been drafted to challenge laws aimed at negating voter suppression based on race; these would scarcely be arguable without the decision in Students v. Harvard. These will soon appear; others are, sadly, inevitable.

On the other hand, there has been no explicit statement that class-based discrimination will be impacted at all, leaving room for policies that either bar or benefit based on poverty. Conservatives, Libertarians, and even Socialists and Marxists can all agree that this would provide sufficient capability for active redress of any imbalance that’s based on lack of opportunity rather than race.

As with any landmark decision — and this is one — there will be inevitable repercussions, some doubtless unintended.

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