After delivering the death warrant in Roe v. Wade and set the country back almost fifty years on the issue of abortion, the Supreme Court is about to reserve the same fate for positive discrimination.
If it is legitimate to reflect on the maintenance of preferential practices, eliminating them is in my view a mistake.
Still good for minorities
It was John F. Kennedy who was the first to resort to positive discrimination to ensure that representatives of minorities received fairer treatment in the labor market. His successor, Lyndon B. Johnson, will cement this practice that many universities will also borrow.
In an article published yesterday on the website of the New York Times, Anemona Hartocollis recalls that positive discrimination has evolved and that the racial factor is only one of the many data used to study the cases. A lower performing black student is not able to “steal” a white student’s place.
Despite the gains attributable to preferential practices, significant gaps remain. The Center for American Progress highlights the many disparities between different groups while shedding light on the unfavorable socioeconomic status of blacks and Hispanics.
Just one example, blacks made up 50% of Mississippi high school graduates in 2015-16, but they made up just 12.9% of college freshmen.
If positive discrimination is not maintained, it will be impossible to encourage social mobility and access to better paid jobs for minorities.
Constitutional discrimination
Whether preferential practices are useful or not, the highest court must consider their constitutionality. In this regard, the new judge Ketanji Brown Jackson offered a nice response to his conservative colleagues.
If a white student can advantageously assert his family background at the time of his application for admission, the previous generations having attended the university where he wishes to study, why could not a black student assert that slavery, segregation and discrimination prevented his family from aspiring to a university education?
More importantly, the race question has been repeatedly associated with the Constitution and the Bill of Rights, if only because of the 3/5 clause (the Founding Fathers establishing the value of the black slave at 3/ 5 from that of a blank for representation purposes) or through the 13e14e and 15e amendments, passed after the Civil War specifically for former slaves. To pretend that the Constitution does not see the color of the skin (color blind) is therefore an argument that seems weak to me.
In an ideal world, positive discrimination would become obsolete, but American society, one of the most unequal in the Western world, in no way represents an ideal world. If you take off your Quebec glasses to analyze this question, you will come to the same conclusion.