Horowitz: College admissions must be the beginning of ridding ourselves of the stain of racism

Yesterday, in a formal statement responding to the SCOTUS ruling against affirmative action in college admissions, Biden emphatically declared, “We cannot let this decision be the last word.” "The court has effectively ended affirmative action in college admissions, and I strongly, strongly disagree with the court's decision," said the president in a rare moment of coherence.

Biden is absolutely correct. We must not take this victory and go home, allowing it to be the last word, as if the opinion alone will erase the stain of race-based preferential treatment. Getting rid of affirmative action in college admissions is merely the first step, but should provide us with the political momentum to uproot all recognition of race as a factor in all areas of law and policy, including employment, government programs, and subsidies. This battle should immediately commence both in the red states and during the federal appropriations season with Republicans in control of the House.

Conservatives might believe that affirmative action across the board will die with the Harvard and University of North Carolina court cases. But unlike the right, the left (correctly) doesn’t view Supreme Court decisions as self-executing on all other branches of state and federal government and universally binding on all other private citizens. Unlike the GOP response to Obergefell, when all red-state marriage laws since the dawn of time fell within the minute of the court announcement, Democrats will push back against the court’s ruling by trying to limit its application as much as possible. They are already doing this with gun laws in blue states, playing a legal game of “catch me if you can,” which forces us to relitigate every unconstitutional policy from scratch.

Based on yesterday’s no-brainer ruling – that race-based preferences violate the 14th Amendment (and the Declaration of Independence) – all other examples of affirmative action, especially by government actors, must be struck down. As Roberts ruled, “an individual’s race may never be used against him in the admissions process.” And he noted that any preference for one race necessarily harms others. “College admissions are zero-sum,” wrote the chief justice for the majority. “A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”

To be clear, this should automatically apply to hiring or promotions based on race. It should apply to the myriad of state and federal programs promoting “minority” businesses over others and certainly to subsidy programs that elevate race as a criterion of eligibility. All diversity, equity, and inclusion bureaucracies must be dismantled, and all government decisions made primarily on the “disparate impact” doctrine must be terminated.

A good portion of the entire purview of the Small Business Administration, a cabinet-level department, is built on shoveling subsidies based on the skin color of owners. Ditto for housing and mortgage policies underwritten by HUD. As the Congressional Research Service noted years ago, “‘goals’ or ‘set-asides’ for minority groups, women, and other ‘disadvantaged’ individuals have also been routinely included in federal funding measures for education, defense, transportation, and other activities over much of the last two decades.”

It has only gotten worse in recent years. For example, why do we have an “Office of Minority Health” under HHS? Our programs should go toward those in need across the board. If it happens to be that one group needs it more, then so be it, but the policies and offices shouldn’t be tethered to the fact that a percentage of that a particular racial group composes less than 50% of the American population. Biden has also stepped on the gas pedal of affirmative action with an executive order requiring the use of “artificial intelligence and automated systems … in a manner that advances equity” in federal hiring practices.

However, absent an aggressive political strategy alongside litigation, this stain of inequality will continue. Only Gorsuch and Thomas ruled that Title VI also precludes race-based preferences, and only Thomas wrote that all forms of affirmative action violate the Constitution. "I write separately [...] to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination," wrote Thomas in a lengthy concurrence.

At present, only eight states have laws against state-based affirmative action, and even those are pretty limited in scope. Last session, Arkansas state Senator Dan Sullivan tried to ban preferential treatment based on race, sex, ethnicity, or national origin. It only applied to state institutions, and only within the realm of procurement, hiring, and education. SB 71 passed the Senate 18-12, but failed in the House 27-51. This despite a 29-6 GOP majority in the Senate and an 82-18 majority in the House. The majority of Republicans couldn’t even stand behind the proposition of ending affirmative action in red-state government institutions. It didn’t even touch the private sector, as this week’s court ruling did.

Red-state governments must create enforcement mechanisms to ensure universities don’t use backdoor channels to discriminate against white people or others based on race. House Republicans should defund all offices and programs directing favoritism toward any group of people primarily based on race.

Even Michelle Obama, in a bizarre statement seemingly bemoaning the court ruling, made the case against affirmative action. She referred to it as “a shadow that students like me couldn’t shake,” wondering how many people doubted if their achievements were based on merit. She is exactly right. As Clarence Thomas put it more eloquently, affirmative action “locks blacks into a seemingly perpetual inferior caste.” He noted that it’s “an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood."

So, while we are just beginning to fight and must push Republicans to codify the legal spirit of this opinion into state and federal law, as the left works to circumvent the ruling, the principle behind this fight is final. As the great Calvin Coolidge said while commemorating the 150th anniversary of the Declaration, “If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final.”

Leftists believe they can advance to a degree of “super equality” they call “equity,” which is in fact the ultimate form of inequality. As Coolidge warned: “No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people.”