It wasn't long ago that I stopped DivThu simply out of exhaustion ... but ... then I realized how many of you relied on it, in a fashion - and that in some ways we were making progress.
Most of my frustration with DivThu was a byproduct of heartbreak. The military in general and a little behind the rest of the services, the Navy and Marine Corps in particular, had a great history of being ahead of the trend when it came to racial equality, but somewhere along the way we got off track and got stuck in the early 1970s.
Especially under the previous two CNOs, the horrible support of retrograde racialism and divisive policies was enough to wear anyone down ... but ... even as the Navy-Marine Corps team is now at a hover and the USCG a few years ago slid backwards - thanks to the Supreme Court we have good news. We're winning. As it should, the forces of equality are back on the rise.
First - we now have some push back towards equality and working towards a race-neutral policy in a lot of places, and we can start at the service academies and perhaps recruiting too.
The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’” Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6 (1986) (quoting Greenawalt, Judicial Scrutiny of “Benign” Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578–579 (1975)), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.Of course there will be nasty, name-calling people and organizations who will try to stop progress, but remember this: they are doing so because they have a paycheck or some socio-political-psychological reason for it. Don't let them get the best of the argument - we now have some significant wind at our back - and by any objective perspective, we are right.
Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.”
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True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”
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Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity . . . This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.