Affirmative Action on Trial at U.S. Supreme Court

‘Alive but Ailing’

“Affirmative action is alive but ailing, the idea of ‘critical mass’ to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive. Those were the dominant impressions at the close of a one-hour, nineteen-minute argument in the Supreme Court Wednesday,” said veteran U.S. Supreme Court reporter Lyle Denniston at SCOTUSblog, after the Court heard arguments in the case of Fisher v. University of Texas at Austin.

Embarrassed for the Court

“Critical mass” is the idea that there need to be enough students of color attending a school to overcome a sense of “racial isolation,” explained Linda Greenhouse at The New York Times. Greenhouse was embarrassed for the court after acquainting herself with its questions, she said. “Of the four justices most intent on curbing or totally eradicating affirmative action — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas — the three who spoke (minus Justice Thomas, of course) failed to engage with the deep issues raised by Fisher v. University of Texas. …It was impossible to avoid the conclusion that ridicule rather than a search for understanding was the name of the game.”

Plaintiff ‘Failed to Meet Threshold’

The plaintiff in the case, Abigail Fisher, “failed to meet the threshold of being in the top 10 percent of her graduating high school class — which would have automatically guaranteed admission to UT,” said Edward Wyckoff Williams at The Root. He went on to argue that “four decades after legalized discrimination was still codified in law, racial disparities persist at nearly every level of American society. From criminal justice to education, employment to housing, minorities in general and African Americans in particular continue to face an uphill battle toward social and economic equity.”

Affirmative Action for Whites

Williams also mentioned a new book, What’s the Matter With White People? in which the author, Joan Walsh, reminds readers that “white Americans enjoyed the benefits of the Great Society social welfare programs, in particular the postwar GI Bill, expansion of public universities, FHA mortgage-lending guarantees and union jobs … amounting to affirmative action government policies for poor and low-income whites — and often, almost explicitly, excluded African Americans and other people of color.”

Selective Resentment

At The Huffington Post, Steve Nelson accused Fisher of having her cake and wanting to eat it too and he accused the court of appearing “ready to hand her a fork.” Said Nelson: “The young white woman, a recent graduate of Louisiana State University, filed the lawsuit now being considered because, she claims, she was unfairly denied admission to the University of Texas. One might argue whether the distinction between these two institutions is so great that Fisher had standing to bring the case at all. She claims that this allegedly diminished pedigree has done her grievous harm. Whatever. Lots of kids don’t get into the colleges they most desire. Did Fisher, or those who advised her to sue, choose to complain that some other white student of ‘lesser qualification’ won the spot she so dearly coveted? No, it was only the allegedly ‘inferior’ black applicants whom she apparently resents.”

Court’s High Bar Cleared

Noting that “the Supreme Court has [previously] insisted that any affirmative action plan must meet the test of ‘strict scrutiny’ — that is, that the plan must be ‘narrowly tailored’ to serve a ‘compelling interest,'”Greenhouse said “the justices obviously know that the court has concluded that affirmative action in higher education admissions can clear that high bar — as it did nine years ago in Grutter v. Bollinger, the University of Michigan Law School decision.” So, she concluded, “There was a context in which the Regents of the University of Texas, following upon the Michigan decision, chose to act, a history they sought to acknowledge, and a better future they hoped to achieve for their diverse state by supplementing the unsatisfactory and mechanical ‘top 10 percent admissions plan with one that considers each applicant as an individual — with race as ‘only one modest factor among many others.'”

‘Temporary Measure’ to Permanent Entitlement

At Forbes, Bill Frezza wondered how “a set of ‘temporary measures to level the playing field’ become a permanent entitlement advantaging even minorities from wealthy backgrounds over white kids who grew up in poverty?” Frezza advised readers to take the approach that blond-haired, blue-eyed U.S. Senate candidate Elizabeth Warren did when she identified herself as a Native American on a Harvard Law School job application. Said Frezza: “Suppose enough of us chose to adopt the Warren standard? After all, every human being has ancestors that came from Africa, however remote. Who’s to say we don’t identify with them?And therein lies the fastest way to put an end to affirmative action without relying on the courts or the ballot box.”

Clever, isn’t he?

Downside for People of Color

Frezza and Fisher are obviously not alone in their disdain for Affirmative Action. Some however, are uncomfortable about it for entirely different reasons. At CNN, for example, LZ Granderson said, “If I had a nickel each time a white guy e-mails or tweets that I have my job because I’m black, I wouldn’t need the job, because I’d be rich. This is at the heart of a little talked about secret regarding affirmative action: A lot of black professionals don’t like it either. Not because they think the playing field is necessarily leveled, but rather their skills and talents are constantly being slighted by whites who think their jobs were given to them solely because of their race.”

Big Business Backs It

Big business, meanwhile, is on the aside of Affirmative Action, according to Bloomberg Businessweek. “Some of the biggest corporations in America say that having a diverse payroll helps boost sales, and they want the Supreme Court to keep that in mind as it considers this term’s affirmative-action case,” the article said.

What do you think?

Should Affirmative Action become another entry in the history books or is it still necessary for leveling the playing field?

Court Strikes Mandatory Life Without Parole Sentences for Juveniles

There’s been a plethora of legal news here at UrbanFaith in the last week, what with the U.S. Supreme Court ruling on the Patient Protection and Affordable Care Act and Arizona’s Controversial immigration law, and a federal judge issuing a permanent injunction in the ongoing New York City public school worship ban battle. Neglected among these stories was another U.S. Supreme Court decision issued last Monday (June 25) that ends mandatory life without the possibility of parole sentences for juvenile offenders.

The court ruled that laws requiring youths convicted of murder to be sentenced to die in prison violate the Eighth Amendment’s ban on cruel and unusual punishment,” The New York Times reported.  In her majority opinion, Justice Elena Kagan referred to two earlier death penalty cases that limited penalties for juvenile offenders, according to The Times. In Roper v. Simmons (2005), the Court eliminated the juvenile death penalty and in Graham v. Florida (2010), it ruled that life without the possibility of parole was unconstitutional except in the case of a murder conviction.

“The decision was based on the consolidated cases of Kuntrell Jackson and Evan Miller, who were both given life-in-prison sentences with no chance of parole for their involvement in homicides when they were 14 years old. In essence the majority argued that children are not adults corrupted beyond redemption, but unformed people with the capacity to change and grow,” The Root reported. “The ruling does not automatically free any of the estimated 2,000 prisoners serving life sentences for crimes committed as juveniles (60 percent of whom are black); nor does it forbid such life terms for youths convicted of homicide,” the article said. “Rather, sentencing judges must first take into account the offender’s age, the nature of the crime and other mitigating factors.” The article also includes an interview with Bryan Stevenson, the executive director of the Equal Justice Initiative, who represented Jackson and Miller before the Supreme Court.

The ruling doesn’t bar sentences of life without the possibility of parole, The Christian Science Monitor reported in an editorial, but “judges and juries must first assess a minor’s capacity for reform” because, the court reasoned, “only a small percentage of adolescents develop entrenched patterns of problem behavior.”

“The court insists that these new theories about a child’s emotional and moral states reflect ‘the evolving standards of decency that mark the progress of a maturing society,'” the editorial said. In the paper’s view, “this materialist view of character development … relies too simply on the latest interpretations of brain science, which can create a sharp line of age in judging a person’s willingness to change.” The Monitor agreed with dissenting Chief Justice John Roberts, who it said, “chided” the majority “for not regarding those over 16 or 18 years old as also capable of rehabilitation.” Roberts was joined in his dissent by Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The two cases under consideration were originally tried in Alabama and Arkansas, The Birmingham News reported. “Most” of its commenters think the Supreme Court got this decision wrong. A writer using the alias MOP, for example, wrote, “I don’t think I’m in the minority when I say I don’t want to see somebody who murdered anybody in cold blood set free. … I believe people can change, but anybody who takes the life of a helpless person would have to go a long way to convince me that they could be a good law-abiding citizen.”

Likewise, the families of Miller’s and Jackson’s victims told told The Daily Beast that they dread having to provide victim statements at new sentencing hearings. In Miller’s case, the Court cited his highly “pathological background” in its decision, the article said, but his victim’s daughter reportedly said, “Just because you have a bad childhood doesn’t give you an excuse to commit cold-blooded murder.” “We thought it was all behind us and done where you could move on,” the mother of the victim in Jackson’s case reportedly said. “Now it’s all being relived again.” Jackson was an accomplice in that murder.

The American Academy of Child and Adolescent Psychiatry took the opposite position in a brief it filed in the case. In a press release supporting the Court’s decision, AACAP said, “Recent research has also demonstrated that the brain continues to change and develop throughout the teen years and into early adulthood. As a result, adolescents are more likely to respond impulsively, utilizing a more primitive part of their brain. Additionally, the deterrent value of life without parole has yet to be demonstrated. It is particularly unlikely to deter adolescents from crime, as they tend to live in the present, think of themselves as invincible, and have difficulty contemplating the long-term consequences of their behavior.”

Already a 56-year-old Philadelphia man who has been in jail since 1975 for a murder he committed as a teenager has asked to be released in light of the ruling, the Associated Press reported today. “Pennsylvania prisons have nearly a quarter of the nation’s approximately 2,100 teen lifers because state sentencing laws give judges only two options for anyone convicted of first-degree murder: a death sentence or life in prison without parole. Also, Pennsylvania juveniles of any age can be tried as adults,” the article said.

What do you think?

Did the Supreme Court get this ruling right, or is juvenile brutality a good enough predictor of future action to justify life in prison without the possibility of parole for juvenile offenders?