Archive for June, 2013

UNITED STATES SUPREME COURT JUSTICES AT COGNITIVE LOGGERHEADS IN FISHER V. UNIVERSITY OF TEXAS AT AUSTIN _DECIDED JUNE 24, 2013 by Alice Travis

Wednesday, June 26th, 2013

“Cultural mind sets which fail to recognize that intelligence has no knowledge of geographical labels, ethnic descriptions or racial identifications move increasingly toward the periphery of mankind.” [Cognitive Evolution]

While the United States Supreme Court in Fisher v. University of Texas at Austin vacated the judgment and remanded the case for determination of whether the Fifth Circuit Court of Appeals decided the issue under the Constitutionally mandatory strict scrutiny guidelines, a concurring Opinion of Justice Clarence Thomas and the dissenting Opinion of Justice Ruth Ginsburg elevate the case to near landmark status. The issue preserved is the constitutionality of benign racial engineering in higher public education by state actors.

Speaking

Justice Clarence Thomas:

“I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

“Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life.”

“There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.”

“[T]he University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign….While it does not, for constitutional purposes, matter whether the University’s racial discrimination is benign, I note that racial engineering does in fact have insidious consequences.”

Speaking

Justice Ruth Ginsburg:

“Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated.” Gratz v. Bollinger, 539 U.S. 244, 301 (Ginsburg, J. dissenting).

“[I]f universities cannot explicitly include race as a factor, many may resort to camouflage to maintain their minority enrollment.” Gratz, 539 U.S.,at 304 (Ginsburg, J., dissenting).

“Among constitutionally permissible options, I remain convinced, those that candidly disclose their consideration of race [are] preferable to those that conceal it…. Accordingly, I would not return this case for a second look.”

As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a factor of a factor of a factor of a factor in the calculus; followed a year long review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student body diversity….”

The ultimate resolution of the matter will have far reaching cerebral consequences for millions of impacted Homo sapiens.

Whatever side of the political spectrum one may fancy, Justice Thomas’s Opinion makes a profound observation: “The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities”:

Slaveholders argued that slavery was a positive good that civilized blacks and elevated them in every dimension of life…(Slavery,. . . has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth);…(They are elevated from the condition in which God first created them, by being made our slaves).

The book Cognitive Evolution recounts and addresses the true narrative of a former American slave. The woman’s story was originally told in Genovese’s The World The Slaves Made. When discussing her life under slavery the former slave ( then a legally free woman) exhibited the cognitive state of a perfectly acculturated slave. She recalled that her slave master told her about Christianity and life everlasting in heaven. But she confided in the interviewer that she wasn’t so sure she believed in all that. What did she long for? She pined for the good old days of slavery, concluding “that would be heaven enough for me.”

The Court’s narrowly tailored Opinion in Fisher v. University of Texas at Austin did not require decision on whether there were any actual cognitive benefits for those admitted under the University’s subject racial engineering initiative. In his concurring Opinion Mr. Justice Thomas cited data for subsequent examination of the issue concluding:

“There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful. Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates….”

“Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University….The University and its dozens of amici are deafeningly silent on this point.”

The book Cognitive Evolution at great length investigates how the esteemed Frederick Douglass escaped the cognitive snarls of slavery. The answer is basic. He learned to read like the white boys with whom he played. He overheard his slave master berate his slave mistress for teaching him to read the bible. The master explained, Reading unfits a child to be a slave.
http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf