Make Woke Hurt

By Peter Kirsanow

Monday, April 07, 2025

 

The 14th Amendment plainly states, “No State shall . . . deny any person within its jurisdiction the equal protection of laws.” Nonetheless, despite several Supreme Court decisions chipping away at the racial preference regime (most recently, Students for Fair Admissions v. Harvard), state-sponsored racial discrimination in the form of affirmative-action/set-aside programs remains ubiquitous, the contracting preferences in the recent case of Ultima Services Corp. v. USDA being just one example.

 

Chief Justice John Roberts famously stated in Parents Involved v. Seattle School District that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” At the other end of the ideological spectrum, in Schuette v. Coalition to Defend Affirmative Action, Justice Sotomayor maintained that “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” Really.

 

A more effective means to reduce state-sponsored racial discrimination is to impose serious monetary sanctions on individual public actors (e.g., governors, mayors, department heads, agency directors) who initiate, promote, maintain, or engage in such discrimination. Government officials generally enjoy expansive protections against personal liability for actions taken in their official capacities. A significant cohort of public officials continue to believe it’s permissible, even holy, to discriminate “the right way,” i.e., against whites, Asians, and males.

 

Public actors are not, however, protected by qualified immunity if they violate “a clearly established constitutional right.” In light of recent Court jurisprudence, including SFFA v. Harvard, it’s not “reasonable” to perpetuate racially discriminatory programs, even if such programs benefit the politically favored group du jour. Therefore, with due respect to Roberts and Sotomayor, a more effective way to reduce discrimination on the basis of race by public actors is to impose substantial personal liability for their discriminatory policies and programs and preclude reimbursement from the public fisc. Multimillion-dollar personal judgments, or the prospect thereof, would concentrate the minds of public actors as well as those of their insurance carriers.