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Louis K. Bonham: ‘Enforcing the Coming Affirmative Action Bans: A Modest Proposal’

Louis K. Bonham: ‘Enforcing the Coming Affirmative Action Bans: A Modest Proposal’

“most seasoned court watchers and constitutional law scholars agree that it is highly likely that SCOTUS is going to overrule Grutter, Fisher II, and perhaps even Bakke”

This has been such a huge issue for so long. Here are some real ideas.

Louis K. Bonham writes at Minding the Campus:

Enforcing the Coming Affirmative Action Bans: A Modest Proposal

In the wake of the recent opinions in Dobbs, BruenCarsonWest Virginia v. EPA, and Kennedy, there is no serious question that originalism is not only ascendant but firmly in control in the Supreme Court. As a result, most seasoned court watchers and constitutional law scholars agree that it is highly likely that SCOTUS is going to overrule GrutterFisher II, and perhaps even Bakke, and hold that racial discrimination in higher education admissions decisions violates both the Constitution and Title VI of the Civil Rights Act of 1964…

A Modest Proposal

This law would apply to all institutions of higher education in the state. [Alternative: all such institutions with enrollment or endowments exceeding certain thresholds.]

First, for all covered institutions, preferential treatment based on race, ethnicity, national origin, gender, religion, age, disability, sexual preference, or political belief or affiliation in admissions, employment, promotion, tenure, awards, or funding decisions or practices are declared to be illegal. There are no exceptions for preferential treatment of “underrepresented,” “disfavored,” or “oppressed” groups.

Second, if an institution is shown to have exhibited a pattern of such discrimination (i.e., at least a certain threshold number of predicate acts, as opposed to an isolated individual incident) after the effective date of the law, then all students enrolled during the period when such a discriminatory pattern occurred (e.g., Fall Semester 2023) shall be entitled to recover fifty percent of all tuition and fees paid to the institution during that period.

Third, any persons (including third-party consultants, administrators, and professors) shown to have been knowingly involved in the discriminatory acts or practices that formed the pattern are personally liable for statutory damages of the greater of $100,000 or their highest annual compensation from the institution, or five times such amounts if any portion of such liability is indemnified or covered by any contractual or other reimbursement obligation. For public employees, there is no sovereign or qualified immunity from such suits.

Read it all.


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Booker T. Washington | October 28, 2022 at 10:24 am

“No greater injury can be done to any youth than to let him feel that because he belongs to this or that race he will be advanced in life regardless of his own merits or efforts.”

— Booker T. Washington


Frederick Douglass | October 28, 2022 at 10:30 am

“Everybody has asked the question, … ‘What shall we do with the Negro?’ I have had but one answer from the beginning. Do nothing with us! You’re doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, … let them fall! I am not for tying or fastening them on the tree in any way, except by nature’s plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also.”

— Frederick Douglass


It’s a great start.
But never name your work “a modest proposal” unless the offenders get eaten.