National Review Online, on the Texas affirmative action case now before the Supreme Court:
Affirmative action is racism. The law and simple moral decency need to be respected, and this vestige of Jim Crow-- the legal system that favors and disfavors citizens on the basis of race-- needs to be in the history books, not in our civic life.
The Civil Rights Act of 1964 is fairly straightforward in its language: “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.” In case you are wondering whether the University of Texas counts as such a program or activity, the act explicitly includes any “college, university, or other postsecondary institution, or a public system of higher education” receiving federal funding, which the University of Texas system does, in generous amounts. This unambiguous ban on racial discrimination stood as the law of the land until 1978, when the Supreme Court’s split-personality Bakke decision found some of the justices pretending, as they often do, that the words on the page do not mean that they plainly mean. In Bakke, the Court held that quotas were verboten but left room for using race as a bonus, a position later upheld by the Grutter v. Bollinger and Gratz v. Bollinger decisions.
The result of all this conflicting judicial precedent is to have made a hash of the law. But the Civil Rights Act of 1964 still says what it says, and the right thing for the Court to do is to enforce the law as it was written, not as America’s law-school deans wish it had been. If the elected branches want to reopen the Civil Rights Act to make room for preferential racial discrimination, then the Obama administration has at least a little more than two months left in office and is welcome to try. It is not as though the administration has shied away from the issue entirely: Justice Kagan has been obliged to recuse herself from this case because she worked on it as Obama’s solicitor general. (Guess which side.)
Substantial socioeconomic differences persist between black Americans and the rest of the country — differences that are not going to be sorted out by rigging the admissions processes at flagship universities or elite law schools. It is time to close the book on official racial preferences and return to the colorblind standard set by the Civil Rights Act of 1964, consistent with our constitution and our national ethic.