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Barry Brill

The Sins of the Fathers….

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The Bible speaks of generational sin in Exodus 20:5, which states that “the iniquities
of the fathers are visited upon the sons and daughters — unto the third and
fourth generation”. Other texts term this concept an “ancestral curse”.

If one of your ancestors once robbed or unfairly oppressed one of my ancestors, perhaps a hundred years ago, do you have an inherited moral duty to compensate me for that historic wrong?  And do I have an inherited moral right to be compensated by you?

What if there was blame on both sides? What if I (or you) are descended from both sides?

These are complex and difficult philosophical questions when applied to individuals. The complexities only multiply when they are expanded to heterogeneous groups – families or clans or whole tribes or even entire mixed-blood groups.

Today, these questions are much more than philosophical musings. They demand answers. They lie at the heart of the culture wars that are roiling governments and political parties all around the world.

US Supreme Court

All of these questions and more fell to be decided by the US Supreme Court in the conjoint cases of Students for Fair Admissions Inc v Harvard College and North Carolina University . The full judgment (237 pages) can be found here.

The defendants were allegedly applying racial preferences in their admissions policy to favour African Americans over (in particular) Asian Americans – in order to both redress past wrongs and to achieve ‘diverse’ campuses.

The plaintiffs claimed this policy breached the 14th Amendment to the US Constitution which commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.

This watershed case required nine of the best analytical minds in the USA to focus on the generational sin question over a period of eight months. On 29 June, the majority (6-3) opinion was delivered by Chief Justice Roberts along with three concurring and two dissenting opinions by other Justices.

The majority opinion is summed up in a phrase: “Eliminating racial discrimination means eliminating all of it”. This aligns with an earlier much-quoted aphorism by Justice Roberts: “the best way to get rid of discrimination on the basis of race is to get rid of discrimination on the basis of race”.

‘Identities’ vs Individuals

The majority opinion concludes:

“The Constitution deals with substance, not shadows, and the prohibition against racial discrimination is levelled at the thing, not the name. A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual – not on the basis of race.

Many universities have for far too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

This is the core of the Court’s judgment – every citizen is an individual and cannot be defined by any one physical characteristic. Stereotyping and racial averaging is wrong in all circumstances, regardless of benign intentions.

If an individual is not defined by her skin colour or ancestry or familial ties, then she is not the alter ego or proxy of some long-dead victim of a historic wrong. Instead, she is a whole and complete person in her own right, with her own challenges, opportunities, strengths and vulnerabilities. Ethically and legally, her rights and responsibilities are neither expanded nor limited by the events of yesteryear.

On the other hand, if that citizen is herself harmed by a racial stereotyping incident, then universities are quite entitled to take that experience (and her reaction to it) into account in considering her individual admission application. 

‘Diversity’ is stereotyping

The Supreme Court has always acknowledged that the central promise of the Equal Protection Clause is to forbid laws and public policies that discriminate on the basis of race. But since 1978 the Courts have allowed a narrow and temporary exception when the objective is “obtaining the benefits that flow from a diverse student body”.

This is the same justification as is used by DEI departments of government bodies throughout the US. While diversity of opinion or worldview or experience is discouraged, a high value is placed on achieving diversity of ethnic ancestry and skin colour. 

Justice Roberts rejected this as a form of racial stereotyping – because it assumes that students bring something to the table by virtue of their race alone.  It wrongly perpetuates the prejudices of earlier generations, rather than allowing colour-blindness to evolve and improve over time.

In his concurring judgment, Justice Clarence Thomas (at p97) is eloquent:  

“All racial categories are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities. Of course, that is false….Yet, universities’ racial policies suggest that racial identity “alone constitutes the being of the race or the man.” That is the same naked racism upon which segregation itself was built. Small wonder, then, that these policies are leading to increasing racial polarization and friction.

The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law.”


Although all six judgments are well worth reading, most interest will focus on the direct clash between the two Black members of the Court. 

Justice Ketanji Brown Jackson dissented in strident terms:

With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems…

The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.

In reply, Justice Thomas readily agreed that US society was not and had never been colour-blind – but its legal systems were and must always remain colour-blind:

People discriminate against one another for a whole host of reasons. But, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.

Justice Jackson would replace this neutrality with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. …

This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race.”

Several Justices adverted to US progress in reducing societal racial discrimination since the Supreme Court first rejected legal racialism in Brown v Board of Education some 70 years ago. Although the spread of colour-blindness may be gradual, the direction of travel must be consistent.

‘Equity’ Statistics

Justice Jackson contended that macro statistics showing disparities of aggregated outcomes as between ethnic groups provided evidence of widespread racial prejudice. She cited health, income, crime, education and other statistics at national level. 

Justice Thomas quotes Thomas Sowell, who said: “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings”, and wades into the Jackson argument:

“Even if some whites have a lower household net worth than some blacks, what matters to JUSTICE JACKSON is that the average white household has more wealth than the average black household. She uses her broad statistics to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.

Nor do JUSTICE JACKSONs statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So JUSTICE JACKSON supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood…

Accordingly, JUSTICE JACKSON’s race-infused world view falls flat at each step. Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.”

Ancestral Sin

At root, there was little disagreement between the nine Justices as to the malign effects of such levels of racial prejudice as continue to exist within US communities. The issue was how best to deal with this reality. 

There was no disagreement with the principle that governments and other institutions should try to offset economic/social disadvantages that may be actually experienced by any individual or group – whether inherited or not. If any individual’s disadvantage could be provably linked to racial prejudice, then that too could be offset. However, the criterion must be need and not ancestry.

The three dissenting Justices believed that the Courts should permit special advantages for certain races regardless of need or circumstances. Without saying so explicitly, they saw this approach as the belated righting of a wrong committed by earlier generations. Justice Jackson argued that the issue should be left to academic experts who had studied the issues.

Justice Thomas would have none of this:

JUSTICE JACKSON then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.

Unsurprisingly, this tried-and-failed system defies both law and reason. Start with the obvious: If social reorganization in the name of equality may be justified by the mere fact of statistical disparities among racial groups, then that reorganization must continue until these disparities are fully eliminated, regardless of the reasons for the disparities and the cost of their elimination. If blacks fail a test at higher rates than their white counterparts (regardless of whether the reason for the disparity has anything at all to do with race), the only solution will be race-focused measures. If those measures were to result in blacks failing at yet higher rates, the only solution would be to double down. In fact, there would seem to be no logical limit to what the government may do to level the racial playing field—outright wealth transfers, quota systems, and racial preferences would all seem permissible. In such a system, it would not matter how many innocents suffer race-based injuries; all that would matter is reaching the race-based goal.

There can be little doubt that this SCOTUS Judgment will have a major impact in capitals and cabinets throughout the English-speaking world and beyond. Not so much for its legal principles as for its painstaking analysis of across-the-board scattergun privileges that are based on race alone and are unrelated to individual circumstances or needs.

The Judgments expose the reality that there is no defensible case for such future racialism other than the broad belief that the iniquities of the fathers should be visited upon subsequent generations until the old score is settled. The case, such as it is, effectively relies upon an Old Testament ‘eye-for-an-eye’ worldview.