The United States Supreme Court (Scotus) has ruled against admissibility of pro-Black affirmative action measures in a case involving elite universities Harvard and the University of North Carolina (UNC). That court found that racial enhancement violated the United States Constitution (except On the edge), specifically the article adopted after the American Civil War to abolish slavery guaranteeing “equal protection of the laws.”
Read more at The Daily Maverick: Two Sudanese justices of the US Supreme Court clash over an affirmative action ruling
Most local commentators would likely dismiss the ruling as “right-wing,” but I think the most interesting implication in local race law is what justices opposing the pro-Black affirmative action have written. These are the arguments for maintaining pro-London affirmative action in the United States, and they are attractive to BEE supporters in South Africa in the broadest sense.
The dissenters were Justices Sonia Sotomayor, Elena Kagan (who, I’m proud to say, are Princeton alums like myself), and Kitangi Brown Jackson (who served on Harvard’s board and so had to recuse herself from part of the case). They all take great pains to say that while they do support some positive action, this is not a blank check to beat what we might call a pencil-test approach.
In our country, the average professional critic bemoans BEE as a form of flagrant enrichment for the elite, and wants affirmative pro-black action, but has very little idea of what that means in practice in terms of changing the rules of the game, which usually require change. To “Ramarousing” letters about introducing BEE again while trying harder, under kinder leadership, with more team spirit love for “our people”.
But curious South Africans, especially on the left, will look to the United States since that country tried to undo its version of legal, Jim Crow, apartheid from the 1950s, and both its mistakes and triumphs will offer instructive lessons.
Since 1954, the Scots have ruled against the idea of ”separate but equal”. Separating people by race is inherently unequal. Then in 1978, the Scotsman ruled in favor of Harvard-style affirmative action but against “allocation”.
Clearly defined point systems (such as the BEE), in which candidates receive 10 points out of 100 for being black, have also been neglected. Instead, a single Harvard-style “advice” or “extra mark” was allowed under “Comprehensive Review”.
Ethnic balancing and targeting
As Sotomayor writes (internal citations and references deleted), “Consistent with court precedent, Harvard properly considers race as part of an inclusive review process, values all kinds of diversity, does not consider race exclusively, and does not award a fixed amount of credit to applicants due to their race.” Hence, while there are “tips” when candidates are evenly balanced, there is no “mechanical use of tips” that would treat the difference between races like the difference between getting an A and getting an A+.
What about quotas or ethnic targeting? According to Sotomayor, understood correctly, the data shows that Harvard “does not use quotas and is not involved in racial balancing.”
Similarly, Jackson found that “there are no quotas based on race in UNC’s overall review process. In fact, during the admissions cycle, the school forbids anyone who knows the general racial makeup of the pool of admitted students from reading any applications. More than that, every applicant is eligible.” Also for the added benefit associated with diversity (beyond race) in general.It should be noted that the University of North Carolina understands diversity broadly, including “socioeconomic status, first-generation college status…political beliefs, and religious beliefs.” Diversity of ideas, experiences, ideas and talents.
In some actual cases, “a white student may get excessive diversity while a black student may not”.
What is “ethnic balance”? It amounts to what South African law has called “ethnic targeting,” which starts as quotas and adds a measure of flexibility. A quota system is essentially a “side” system where each group has a “side”: X% is white, Y% is black, Z% is colored, and so on. This is quite strict. But “racial balance” means targeting these X% and Y% outcomes while allowing for deviations if the inputs make these goals difficult to achieve.
Let me give an example from South Africa. Equality Court ruling of 2020 in Cape Barr v Minister for Justice and Corrections She upheld a legal decision to disqualify a black woman, barrister Ncumisa Mayosi, who received 138 votes — by including a man of color who received 30 votes instead — because, as the court summed it up, “four seats for advocates, in terms of rules and must be composed a white male and a white female and a black man and a black female (emphasis added).
The Equality Court has found that this is a legal stake in what Americans call “separate but equal” provision, which that country has banned since 1954.
Disturbingly, the Black Lawyers Association (BLA) argued in Cape Bar The issue of inflexible quotas is of this “separate but equal nature” but “affirms that the quota shall be 75% blacks and women”. In other words, the official court filing of the BLA amounts to saying that if four black women get to vote in the top four, one of them should have a chance at defeating apartheid.
More disturbingly, the Equality Court’s advisory opinion on this asserted that inflexible racial quotas might be constitutionally valid by citing the dictates of the Constitutional Court to that effect. the Constitutional review I published a law review article titled What’s wrong with the quota system? By Dr. Nomphondo Ramalekana, Senior Lecturer at UCLA School of Law, who takes the same arguments even further.
So while the views of Jackson, Sotomayor, and Kagan support affirmative action but oppose quotas, South African courts are leaning down a different path.
Among positive pro-Black thought leaders in the US and South Africa there is an ocean.
We used to have a points system (including BEE) until, in the public sector, this was found to be insufficient and racial balance was added, then In reality Absolute barriers were included by ‘targeting’ the balance at ‘zero’, and by law Absolute barriers returned by excluding companies from bidding for the tender for nearly a trillion rand in government contracts without going through the budget process first. “Excesses” is the norm in the Legal Practice Council, the Police and much more.
It does not work for the poor. Black unemployment rose from about 25% to 35% during the BEE era.
So if you want to keep pro-black positives, but not absolute barriers, zero goals, or 10% bonus points for being black, what would an affirmative action look like? After excluding the former as legitimate forms of affirmative action, what were Sotomayor, Kagan, and Jackson trying to judge as the right way to do it?
raced as a separator
There is no difference between South African affirmative action and American affirmative action more clearly than this question Sotomayor asked in the case of Harvard: “If you have perfect scores on every measure, you are not guaranteed a place at Harvard because they have enough people with scores.” The ideal for each background exceeds their class limit. At some point, something has to break the tie… In every matrix, there will be competing applicants. And you say a school can’t look at its overall diversity numbers and say, among equal applicants, I might make race a divider ?
The lawyer arguing against affirmative action said, “No, you can’t do that,” and you can’t even use race as a tie-breaker. This is now the law in the United States. But the opponents said no to the points system, the goal system, the quota system, allotments or absolute barriers, and “Yes, we can.” tie break system.
The United States is another country, is that appropriate?
tie in the constitution of south australia
The way local race law proponents talk, there is no middle ground between race and value for money. But anyone who has read our republic’s constitution on tenders, for example, knows that Section 217(1) requires that procurement must increase “value for money,” as summarized in the Zondo Commission’s State Capture Report. Section 217(2) says this “does not preclude” what it calls “transferability”.
The current “approach,” according to the State Capture report, “leaves an important question unanswered: Is the basic intent of the Constitution to purchase goods at a lower cost or is the system of purchasing to prioritize the transformative potential identified in Section 217(2)?”
“In the Committee’s view, failure to define the basic intent of the Constitution is unhelpful and has negative repercussions… Ultimately, in the Committee’s view, the basic national interest is best when the government gets maximum value for money in the procurement process and should be Procurement officials advised that.
How, one wonders, is it possible to prioritize “maximum value for money” over race, while still retaining some form of pro-black affirmative action?
easy. Use race as a separator. If two firms sell equal products at an equal price, the blackest firm gets the bid. Just like at Harvard, if two candidates come out with a perfect tie resume, the black candidate gets in.
Progressives on the Scotts bench and our Chief Justice, Raymond Zondo, have endorsed a tiebreaker system to boost disadvantaged people. People who support pro-black affirmative action should pay attention.
But then again, when have you ever heard of a BEE supporter raving about how the advent of race law might affect rising black unemployment? I can’t think of anyone on the left in South Africa who reads the dissidents of Sotomayor and Jackson for lessons in moderation or rule-based alternatives to our current racial law.
I can’t even think of anyone who has read Chief Justice Zondo’s report on “Problems in Legislative Design” and commented on his analysis of the positive measure, either when it was first released or in the recent anniversary week that the report came to public attention. DM