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What Makes The Court's Affirmative Action Decision So Supremely Corrupt

What Makes The Court's Affirmative Action Decision So Supremely Corrupt

In a footnote to his egregiously wrong Supreme Court decision ending affirmative action in college admissions, Chief Justice John Roberts appended a sneaky little footnote exempting the nation’s service academies, West Point, the Naval Academy, and the Air Force Academy. Roberts doubtlessly thought he was being crafty when he noted that there are “potentially distinct interests that military academies may present” that necessitates exempting them from the decision. Earlier in his opinion, Roberts wrote that because the 14th Amendment affords citizens “equal protection under the laws,” it forbids discriminating between them on the basis of race. “Eliminating racial discrimination means eliminating all of it,” Roberts wrote.

Roberts decision is corrupt on so many levels, it’s hard to know where to start, but this little corner gives us a window into the depth of the corruption of the reasoning by Roberts and the other five Republican-appointed justices. The service academy exemption proves all by itself that the six conservative justices had made up their minds to end affirmative action and, in going shopping for a legal justification, ran into a completely obvious legal quandary: if the 14th Amendment is supposed to protect the rights of all American citizens, why doesn’t it protect the rights of citizens who apply for admission to the service academies? In other words, if affirmative action is so wrong that it necessitates “eliminating all of it,” why not eliminate it for the service academies?

It's a classic “what’s good for the goose is good for the gander” situation, isn’t it? That Roberts and the other conservatives didn’t see the obvious hole they were driving into tells you all you need to know about how dirty was their legal windshield. An amicus brief supporting affirmative action signed by a former superintendent of West Point and two former chairmen of the joint chiefs of staff asserted that “units that are diverse across all levels are more cohesive, collaborative, and effective.” It’s hardly worth noting that these retired generals who collectively share more than 90 years experience in the military know what they’re talking about. The strength that diversity brings to the military is inarguable.

But if it works for the military, wouldn’t it work in civilian life as well? If the service academies believe that diverse student bodies produce better educated and better trained leaders for the military, and they do, why didn’t the Supreme Court accept the same argument when it was made by Harvard and the University of North Carolina? Don’t American corporations, and law firms, and hospitals, and police forces, and insurance companies and every other kind of employer need the same benefits that diversity gives to the military?

Of course they do, and that is why colleges have had affirmative action policies for decades. Affirmative action works. Not only does it take steps to make up for the decades of discrimination against Black and Brown people, affirmative action improve education for college students who are exposed to diverse opinions and life experiences in diverse student bodies. Can you imagine sitting in a classroom at a university and studying Reconstruction after the Civil War, or the Jim Crow era, or the Civil Rights Movement, and every face in the room including that of the professor is white? That’s the way it was at colleges and universities for decades. The very people whose history students were studying were not there.

The ruling by the Roberts/Thomas/Alito court on affirmative action has created two classes of education in this country: one for the military academies, and one for all the other institutions of higher learning. I predict that this decision is so weak and shot full of logical holes that it won’t take long for a university somewhere to file a lawsuit that basically says, hey! We want to be treated like West Point and the Naval Academy! We compete against them in admissions, trying to attract the best students. There ought to be a level playing field, and this Supreme Court decision tilts it against civilian colleges.

Rep. Jason Crow, Democrat from Colorado and a former Army Ranger, wrote on Twitter, “The court is saying diversity shouldn’t matter, EXCEPT when deciding who can fight and die for our country,” and that may be correct, but it was not the reasoning behind the Roberts opinion that exempted the service academies from having to end their affirmative action programs. Roberts, and the other five conservatives on the Supreme Court, appear to have accepted the arguments made by the former generals in their amicus brief, that diversity is necessary if you want to educate and train leaders of a military that is as diverse as the country is, and you want that military to be more “cohesive, collaborative, and effective.”

Which is interesting, because the exact opposite argument was used against President Harry S Truman’s order integrating the military in 1948. General Dwight Eisenhower and General Omar Bradley testified before the Senate Armed Services Committee that racially integrating the military would “damage unit cohesion, morale, and good order and discipline.”

General Colin Powell, 45 years later, would make the same argument to President Bill Clinton on the day that as chairman of the Joint Chiefs of Staff, he led the other chiefs of the Army, Navy, Marines, and Air Force into the Oval Office in February of 1993. Powell told Clinton that if he did the same thing Truman did and integrate gay people into the military, it would “destroy unit cohesion, discipline, and morale” and weaken the United States military, and he, Powell, and the other service chiefs would resign.

A similar argument was made when women were integrated into the military in 1976 by President Gerald Ford. Women were predicted to “damage our military strength and readiness,” the argument went.

We all know what happened after the military was integrated by race, gender, and sexual orientation. Our military isn’t weaker today. It’s stronger than it ever was.

So, if the Supreme Court is going to accept the argument that affirmative action is necessary at the service academies because units that are diverse and led by leaders who are Black, Brown, Asian, and female are all the better for it, why shouldn’t civilian colleges and universities be able to do the same thing with their student bodies? Won’t the leaders their graduating classes produce be better prepared to go out and get jobs and succeed in an America that is more diverse than at any time in its history?

You know what the answer is, and so do I, and so do Justices Roberts and Thomas and the rest of them. But they don’t care, because what they’re doing isn’t interpreting the Constitution, it’s serving a conservative agenda that has wanted to turn the clock back for over 50 years. By overturning one precedent after another, from abortion, to affirmative action, to environmental regulations, to reversals of long-standing rulings on the First Amendment’s guarantees of free speech and religious freedom, the Supreme Court is turning itself into a legislature. The Congress under Republican control and a Republican president relaxed so-called CAFÉ standards for automobiles, regarding both gas mileage and pollution controls. When Joe Biden got in the White House, he returned the standards to the way they were and imposed new and stronger ones.

What’s happening with the Supreme Court is the same thing. Conservatives didn’t like the old standards for college admissions, so they put justices on the court who would overturn them. Conservatives didn’t like the standards of medical care for women established under Roe v Wade, so they spent 40 years getting conservative justices on the court who would overturn that decision. Legislatures and the executive offices in states and in the nation are inherently political. That’s why we have elections every two, four, and six years. Now the Supreme Court has become so politicized that we should be electing its justices, but the Constitution won’t let us.

This imbalance in political and practical power is being exploited by conservatives to serve their own ends, and it’s going to persist and even get worse in the future because the issues conservatives want to push onto the country are so unpopular, they are going to lose election after election, and they know it. A democracy is supposed to respect the rights of the minority but be controlled by the majority.

I think we are heading into at least two decades of minority rule by judicial fiat, and we had better come up with some ways to counter it, or one right after another is going to fall to the totalitarian rule of six out of control arch-conservative justices who are so corrupt, they won’t even write themselves a code of ethics to control their greed and worst impulses.

Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.

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On The High Court, Affirmative Action Isn't Only For Republicans

On The High Court, Affirmative Action Isn't Only For Republicans

Every day since President Joe Biden reiterated his pledge to nominate the first Black woman to the U.S. Supreme Court, conservatives have reacted with the most predictable jeers and complaints. We've heard all these tiresome whines so many times before. But for some strange reason, the right-wing worries about "reverse discrimination," tokenism and lack of qualifications only apply to minority nominees, and then only when those minority nominees are Democrats.

When former President George H.W. Bush chose Clarence Thomas to fill the high court seat left vacant by the retirement of Thurgood Marshall, did anyone actually believe that the former equal employment bureaucrat was the most qualified possible nominee? Bush denied that Thomas was a "token," but the president's endorsement of him as "best qualified at this time" seemed lukewarm at best. Setting aside Anita Hill's entirely plausible testimony about his alleged sexual harassment of her, Thomas carried a thin resume of judicial achievement and scholarship, receiving the lowest possible "qualified" rating by the American Bar Association.

But Thomas was an ideologically reliable conservative — an extremist, in fact, as we now know — and he was Black, which provided convenient cover for his hostility to civil rights. So, this "affirmative action" hire, achieved at the expense of every other possible nominee of any background, disturbed conservatives not at all. They defended him with absolute fervor and ferociously denounced any opposition as racist. (Thomas played the race card too when he accused his opponents of "a high-tech lynching.")

Bush wasn't the first Republican president to apply such an exclusionary — or was it inclusionary? — criterion to a Supreme Court appointment. His predecessor and partner Ronald Reagan had promised during the 1980 campaign to name the first woman to the court, for the utterly sensible reason that vital institutions should reflect the society they serve, including the female half. At the time, there wasn't even a women's lavatory near the courtroom.

This instance of affirmative action for women, by definition excluding all men from consideration, raised not a word of objection from Reagan's reactionary base — who disliked Sandra Day O'Connor only because they correctly suspected she wouldn't overturn the Roe v. Wade abortion rights precedent.

Five years later, Reagan got the chance to choose again when Warren Burger retired and was replaced as chief justice by William Rehnquist. The Gipper's short list was so short that it apparently included only one name he took seriously, Antonin Scalia. Aside from Scalia's rigid 17th century worldview, what recommended him was that, as Reagan put it, the judge was "of Italian extraction." Yes, the iconic conservative president based his choice on the candidate's ethnic background. Or as his former White House counsel Peter Wallison quoted him: "We don't have an Italian American on the court, so we ought to have one."

As Wallison described the process, that was the bottom line for Reagan, who asked about Scalia's ethnic background, and then spent no more than 15 minutes interviewing him for the job. "I think [Reagan] felt that it would be great to put an Italian American on the Supreme Court," Wallison later told an oral history interviewer.

Such sentiment doesn't bother me nearly as much as Scalia's "originalist" jurisprudence, which always struck me as both unfaithful to the Founders' intentions and intellectually ludicrous. What is notable, however, is that nobody ever complained that Reagan somehow violated the Constitution or American values by going ethnic — with a highly political calculation that shored up the Republican base in a conservative Catholic community.

Fulfilling the aspirations of a party constituency — and expanding the definition of American to include the previously excluded — is only bad when a Democrat does it. Republicans get away with playing ethnic political games, including the toxic versions favored by former President Donald Trump, but they shriek furiously when Democrats attempt to redress historical injustices that are no longer acceptable.

The Black female judges that Biden is considering to replace Justice Stephen Breyer are all exceptionally qualified and able. That they have ascended to this level in a society that consistently undervalues them should tell us just how qualified they are.

So, as Jordan Weissman slyly noted in Slate, it is perfectly sound for Biden to follow in Reagan's footsteps by bringing diversity to the Supreme Court with excellent female candidates of color. And if Senate Republicans have any decency — rather than their usual urge to foment racial paranoia — they would say so too.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

Shocked That College Admissions Are Unfair? Don’t Be.

Shocked That College Admissions Are Unfair? Don’t Be.

You’re shocked to learn that wealthy parents allegedly paid bribes to get their children into elite colleges? Really? You shouldn’t be.

Wealthy parents have been paying big bucks — perfectly legally — to get their children accepted into prestigious colleges for decades. The family makes a huge donation, and suddenly the kid who seemed headed for State U. is bound for the Ivy League. The shocking thing is that nobody seems to care.

If a couple of black or Latino kids get into Harvard or Yale through an affirmative action policy that allows for admission with slightly lower test scores, well, that’s fodder for outrage, fuel for several Fox News shows, the preamble for a lawsuit.

But the longstanding practice of allowing the less-qualified children of graduates to get into elite colleges — known as “legacy” — barely stirs interest, much less headlines. And even wealthy moms and dads who didn’t graduate from Stanford or Harvard or Princeton can pony up a substantial donation to prop the doors open for their kids, as Daniel Golden outlined in his well-researched 2006 book, The Price of Admission: How America’s Ruling Class Buys Its Way Into Elite Colleges — and Who Gets Left Outside the Gates.

Earlier this week, the Justice Department disclosed a sweeping college admissions scandal in which the wealthy, including well-known Hollywood actors, allegedly could not be bothered to follow the legal purchase-a-place-for-your-child practices already established at so many prestigious institutions. Instead, reports say, working with corrupt coaches and entrance exam officials, they lied outright — claiming a child was a championship rower, for example — or paid for fraudulent test scores, according to federal prosecutors. If that’s true, it lays bare a system of college admissions that is corrupt at its core.

Americans are deeply invested in the idea of meritocracy, the idealistic notion that people fail or succeed on their own merits. But for most of the history of this country, Americans of color were denied the opportunity to succeed — no matter how much grit, gumption and determination they demonstrated. And an economy that increasingly favors those who are already advantaged is now closing off opportunity to less-affluent whites, too. In other words, the myth of meritocracy is largely that: a myth.

Education, of course, is supposed to be the great equalizer, a path that will advance the masses. While many prestigious colleges remained the playgrounds of wealthy WASPs through the first half of the 20th century, the increasing use of standardized college entrance exams helped to change that in the latter half. High-achieving students from middle-class families — the sons and daughters of teachers, nurses and small business owners — were admitted. That cemented the myth of meritocracy, but it hardly made college admissions fair.

For centuries, black and brown people were denied the right to a decent education and were barred from entry into many of those elite schools. We could not give our children the advantage of basic academics, much less legacy. Black and brown children started off with educational deficits that made stellar test scores far less likely. Even now, many children of color are stuck in failing schools.

Affirmative action policies — which don’t admit unqualified students but do admit those with slightly lower test scores — were put in place to redress those longstanding disadvantages. But those policies provoke widespread condemnation. Universities across the country have been subjected to lawsuits seeking to end affirmative action in college admissions.

The practice of legacy admissions, however, has not prompted that sort of backlash. Nor has the practice of just giving an elite school a huge donation, the sort of legal bribe that probably helped Jared Kushner, President Donald Trump’s son-in-law, get into Harvard University, according to Golden’s book. He quoted a former official at The Frisch School in Paramus, New Jersey, Kushner’s tony high school, who said, “There was no way anybody … thought [Kushner] would on the merits get into Harvard. His GPA did not warrant it, his SAT scores did not warrant it.” But Kushner’s wealthy father pledged $2.5 million to the school, and he was admitted.

It seems that less-affluent children of color aren’t smart enough to be admitted to prestigious institutions of higher education. They didn’t have sense enough to be born rich.

How College Admissions Are Tilted To Favor The Rich

How College Admissions Are Tilted To Favor The Rich

My 2006 book, The Price of Admission: How America’s Ruling Class Buys Its Way into Elite Colleges — and Who Gets Left Outside the Gates, was intended as a work of investigative journalism.

But many of its more affluent readers embraced it as a “how to” guide. For years afterward, they inundated me with questions like, “How much do I have to donate to get my son (or daughter) into Harvard (or Yale, or Stanford)?” Some even offered me significant sums, which I declined, to serve as an admissions consultant.

They may have been motivated by a tale I told in the book about a youth whose admission to Harvard appears to have been cemented by a $2.5 million pledge from his wealthy developer father. The then-obscure Harvardian would later vault to prominence in public life; his name was Jared Kushner.

Those requests from people who misunderstood my aim in writing the book came back to mind on Tuesday when I heard about the latest and most brazen scandal involving upper-crust parents — including chief executives, real estate investors, a fashion designer and two prominent actresses — manipulating college admissions.

One would think that the rich and famous would care less than the rest of us about foisting their children on elite colleges. After all, their kids are likely to be financially secure no matter where, or if, they go to college. Yet they seem even more desperate — to the extent, according to a complaint, that dozens of well-heeled parents ponied up six or seven figures for bogus SAT scores and athletic profiles for their children to increase their chances at Yale, Stanford and other brand-name universities.

The parents allegedly paid anywhere between $200,000 and $6.5 million to William Rick Singer, who ran a college counseling business in Newport Beach, California. Singer in turn bribed standardized test administrators and college coaches in upper-class sports like crew, sailing and water polo, even staging photos of the applicants playing various sports, prosecutors said.

The parents “chose to corrupt and illegally manipulate the system,” Andrew Lelling, U.S. attorney for Massachusetts, said at a press conference Tuesday. “There can be no separate college admissions system for the wealthy.”

Perhaps these parents were pining to boast at Hollywood cocktail parties about their Ivy League imprimatur. Possibly their offspring, like those of many successful families, lacked the motivation to strive and excel academically, and without a substantial boost would have been consigned to colleges of lesser repute.

In any event, such allegedly criminal tactics represent the logical, if extreme, outgrowth of practices that have long been prevalent under the surface of college admissions, and that undermine the American credos of upward mobility and equal opportunity. Although top college administrators and admissions officials were apparently unaware of the deception, their institutions do bear some responsibility for developing and perpetuating the system that made it possible.

I began looking into this issue in 2003, at a time when the U.S. Supreme Court was considering the fairness of affirmative action for minorities. I documented another form of affirmative action — for the white and privileged.

According to one poll after another, most Americans believe that college admissions should be based on merit, rather than wealth or lineage. Through their own intelligence and hard work, students with the best grades, the highest test scores, the most compelling recommendations and other hard-earned credentials achieve a coveted ticket to higher education — and with it, enhanced prospects for career success and social status. So goes the legend perpetuated by elite colleges, anyway.

But decades of investigating college admissions have led me to conclude that, for rich and famous families, it’s more like a television game show, “Who Wants to Be an Ivy Leaguer?” complete with lifelines for those who might otherwise be rejected. Instead of phoning a friend or asking the audience, the wealthy benefit from advantages largely unavailable to middle-class and poor Americans — what I described in my book as “the preferences of privilege.”

The best-known and most widespread of those preferences is conferred on alumni children, known as “legacies,” who tend as a group to be disproportionately white and well-off. But rich applicants whose parents didn’t attend the target university, like Kushner, still have a leg up.

Rich candidates can enhance their standardized test scores with test-prep and tutoring. They don’t have to rely for college recommendations and advice on an overburdened public high school guidance counselor with a caseload of hundreds of students. Instead, their parents can afford a private counselor who discreetly advises the desired university that the family has a history of philanthropy and, in case of acceptance, would be inclined to be especially generous.

Similarly, inner-city schools often don’t field teams in patrician sports like crew, squash, fencing and the like. But prep and suburban schools do, giving their affluent students an opportunity for the significant edge given to recruited athletes, even in upper-class sports limited to a relative few. Colleges favor recruits in these sports at least partly for fundraising reasons; they’re important to wealthy alumni and donors who played them in college or enjoy them as leisure activities.

So the parents charged in the current case followed customary practices of the entitled: hiring a private counselor, getting test help and participating in a patrician sport. The difference is that they allegedly took blatant short cuts: The counselor was unscrupulous, a stand-in secretly took the tests and the applicants didn’t actually play those sports. But, without the tilted system of preferences already in place, the parents would have had to choose a different route — or actually let merit determine their children’s college destiny.

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