Take a long, hard look at the arguments university officials and left-leaning political activists continue to advance on behalf of affirmative action policies.

They don’t deny that these programs discriminate against qualified applicants on the basis of race, sex and ethnicity. What they do say is that a certain level of discrimination should be permissible to achieve the greater goal of “diversity.” This is what the University of Texas at Austin successfully argued before the Supreme Court earlier this year.

But this line of reasoning is not new in United States history. In fact, if you ask Associate Justice Clarence Thomas, he’ll tell you the university officials are using the same arguments the segregationists of a previous era used to justify discriminatory practices in public education that were ultimately ruled unconstitutional.

The ruling in Fisher v. University of Texas means that, for the time being, universities are permitted to use race in a “narrowly tailored” fashion to acquire the educational benefits that supposedly flow from a diverse student body. In his court opinion, Thomas exposed the troublesome historical antecedent standing behind the discriminatory admissions practices the court has now sanctioned.

“Attaining diversity for its own sake is a nonstarter,” Thomas explained, since the pursuit of diversity as an end in and of itself amounts to unconstitutional “racial balancing.”

In the past 25 years, he has emerged as an ardent proponent of originalist jurisprudence. By looking back to the text of the Constitution and its original meaning, Thomas frequently conflicts with elite opinion makers who favor a living constitution that can be molded to fit the policy preferences of modern liberals. Thomas also connects the natural rights of the Declaration of Independence with the constitutional provisions that limit government power. For this reason, he has expressed a certain willingness to uproot longstanding precedents that conflict with natural rights. Thomas would, for instance, overturn the 2003 Grutter v. Bollinger decision that authorized the use of race in college admissions as part of a “holistic” measurement.

Thomas has consistently argued that the 14th Amendment’s equal protection clause prohibits the state from using race in college admissions. Abigail Fisher, the white Texas resident who brought the suit against the University of Texas, built her case around the equal protection clause. After she was denied admission to the university in the fall of 2008, Fisher alleged that she was discriminated against because she was white. In response, the university claimed to have a “compelling interest” in acquiring the educational benefits of a diverse student body.

This argument did not fly with Thomas in the 2013 case now known as Fisher 1 where the Supreme Court voided a lower court ruling in favor of the University of Texas’s admissions policies. Back then, a majority of justices said that the lower court had not applied the standard of strict scrutiny toward the use of racial preferences that had been established through precedent. Thomas penned a concurring opinion where he connected the university’s arguments with those of the segregationists from the past.

“Unfortunately for the University, the educational benefits flowing from student body diversity — assuming they exist — hardly qualify as a compelling state interest,” Thomas said in his opinion. “Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education, 347 U. S. 483 (1954), the alleged educational benefits of diversity cannot justify racial discrimination today.”

Eric Holder: The FBI screwed up

Also from the Washington Examiner

Former Attorney General Eric Holder says FBI Director James Comey screwed up when he told Congress he found more emails that could be related to its investigation into Hillary Clinton’s private email server.

“That decision was incorrect,” Holder wrote in the Washington Post late Sunday. “It violated long-standing Justice Department policies and tradition.”

Comey told Congress on Friday that while he said his investigation into Clinton was thought to be complete, more possibly pertinent emails were found on a computer used by Clinton’s top aide, Huma Abedin, and her estranged husband, former Rep. Anthony Weiner, D-N.Y.

Democrats blasted Comey’s announcement of the move, and said it politicized the investigation with just

10/31/16 8:27 AM

But in the Fisher 2 case handed down in June, the court ruled that the university met the standard of strict scrutiny and that it could continue to take race into consideration within certain parameters to achieve greater diversity. Thomas dissented in Fisher 2 while reiterating his key points from Fisher 1. In making the case for race-based affirmative action, Thomas points out that the gatekeepers of higher education have aligned themselves with some of the most unsavory figures from the past.

In the desegregation cases leading up to and including Brown v. Board of Education, the Supreme Court “rejected arguments that are virtually identical to those advanced by the University [of Texas] today,” Thomas said in his opinion. “The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society … The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks … The University also asserts that student body diversity improves interracial relations … In this argument, too, the University repeats arguments once marshaled in support of segregation.”

While the University of Texas acknowledges that its continued racial discrimination is problematic, it also says that its affirmative action policies are merely a temporary fix that can be adjusted over time.

“Yet again, the University echoes the hollow justifications advanced by the segregationist …,” Thomas says in his Fisher opinion. “The Fourteenth Amendment views racial bigotry as an evil to be stamped out, not as an excuse for perpetual racial tinkering by the state.”

The notion of equal protection may yet live again.

Jury selection begins for ex-South Carolina cop who killed Walter Scott

Also from the Washington Examiner

Michel Slager, a white North Charleston police officer, was charged with the April 4, 2015, murder of Walter Scott.

10/31/16 8:24 AM

In 2014, Students for Fair Admissions, a nonprofit membership organization comprised of students, parents and concerned citizens, sued Harvard University and the University of North Carolina at Chapel Hill for racial discrimination in the admissions process. Now that the Fisher suit has been settled, those cases are moving forward.

Kevin Mooney is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an investigative reporter in Washington, D.C. who writes for several national publications. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.

Harry Reid: Comey's 'double standard' may have broken law

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“Your actions in recent months have demonstrated a disturbing double standard.”

10/30/16 7:20 PM



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