Judging Freedom - Affirmative Action considered at the Supreme Court

Episode Date: November 1, 2022

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, November 1st, 2022. It's about 1.35 in the afternoon here on the east coast of the United States. Yesterday, the Supreme Court of the United States had a monumental five-hour oral argument on the issue of racial quotas in admission standards in schools. It's an interesting, very interesting case that we all thought wouldn't come back, but it has come back because the Supreme Court, the last time it addressed it, punted. Can a private school, Harvard University, which receives federal funds, use racial quotas in its admission standards? Can a public school, the University of North Carolina, which is directly owned by the state of North Carolina, employ racial quotas in its use of admission standards. The history is an unsatisfactory one because the last time the Supreme Court looked at this,

about 22 years ago, it punted. It basically said, well, the 14th Amendment was written to prevent the states from using racial quotas in admission standards, but we're going to allow some racial quotas because there's a societal benefit that comes about from allowing them, but we're only going to allow it for 25 years. The 25-year rule was made up out of whole cloth by Justice Sandra Day O'Connor. There is simply no constitutional principle which says that something that's constitutional today will be unconstitutional in 25 years or vice versa. The 14th Amendment was written in the aftermath

of the war between the states in order to remove race from the armament of the states in their tools of governance. However, in 1896, just 40 years after the end of the Civil War, the Supreme Court ruled that the states could use race in their decision-making so long as they used it equally. This is the so-called separate but equal doctrine of an infamous case

called Plessy against Ferguson. In 1954, Plessy against Ferguson was reversed in a case called, you know this one, Brown versus Board of Education, in which the Supreme Court ruled that separate is inherently unequal and the majority race, then whites, would always suppress the minority race, then blacks. So there's no such thing as separate but equal, there's just equal, and the 14th Amendment was written to assure that the states behaved towards the races equally, stated differently, in a colorblind way. In 1964, the Congress enacted the Civil Rights Act, which was intended to remove race from all government decision-making. The 14th Amendment only applies to the states.

The Equal Protection Clause requires that they treat people equally. There is no Equal Protection Clause for the federal government. So Congress enacted the Civil Rights Act in order to require all government to be colorblind. Unfortunately, Congress went too far and required colorblindness on private property as well as on government property. Okay, all of that is the background, including the case 22 years ago written by Justice O'Connor. Three years ago, a group of libertarian students and faculty sued Harvard, the nation's oldest private college, University of North Carolina, the nation's oldest public

college, for employing racial quotas. The suit against Harvard is based on the fact that Harvard receives federal funds, and in return for receiving those federal funds, Harvard agreed to abide by federal non-discrimination standards. So effectively, if the 14th Amendment means anything, if federal laws mean anything, then neither Harvard, private but receiving federal funds, or University of North Carolina, public and owned by the state of North Carolina, can discriminate on the basis of race. Both schools have argued that their discrimination on the basis of race is beneficial, that it helps society's goal of a racially diverse future, and it helps to eradicate or to right R-I-G-H-T past racial wrongs.

The plaintiffs argued their goal that Harvard and UNC's goals may be laudatory, but they fly in the face of the 14th Amendment. Surprisingly, the Biden administration's Department of Justice entered this. I say surprisingly because they entered it on the side of the libertarian plaintiffs and college professors and argued that neither Harvard, because it receives federal funds, nor the University of North Carolina, because it's owned by one of the states, can discriminate on the basis of race. There was an embarrassing moment yesterday during the oral argument when the Solicitor General who represents the federal government, she had just finished attacking Harvard and attacking North Carolina, couldn't justify the use of racial quotas by universities that the feds own. West Point, Annapolis, Air Force Academy.

Coast Guard Academy, they all use racial quotas. Oh, she she defended that by saying it's a matter of national security. Everybody raised their eyebrows. Even the liberal membership on the court didn't buy that. So where is all of this going to go? It appears from the questions put by the justices and their banter among them yesterday that the court will invalidate the Justice O'Connor opinion from 2003, involves the University of Michigan, and the court will say the 14th Amendment means what it says,

and Brown v. Board of Education is still the law, and you can't use race as a basis for decision-making if you are owned by one of the 50 states or any governmental entity in the United States or if you receive federal funds. And that's, in my view, the way it should be. The Constitution was supposed to have been colorblind from and after the addition of the 14th Amendment. We all know it hasn't worked that way. Look, there's a lot of flaws in these laws. Some of them purport to regulate private property, which the feds have no authority, in my view,

to do whatsoever. A lot of this comes about because of federal aid to education, which is nowhere justified in the Constitution. The feds should have nothing to do with education and nothing to do with private property. All of these problems with race have come about because of the government, because of the state governments, and now because of the federal government. If the Supreme Court does the right thing and removes race from the Harvard obligations and removes race from the North Carolina decision-making, it'll be a step in the right direction. We should expect an opinion on this after Thanksgiving, but before Christmas. Judge Napolitano for Judging Freedom.