The currently constituted Supreme Court has enough of a conservative majority that it does seem to be returning to an original list standard of review—that is, the justices are respecting what those who wrote the Constitution, and those who passed the amendments, meant when they acted. Justice Ketanji Brown Jackson,* for all her chatter, cannot change this. For this reason, it looks as if the court may finally hold that affirmative action in higher education is unconstitutional. However, because we know that ruling will not stop institutions from engaging in affirmative action, one legal thinker has come up with innovative ideas to put the brakes on discrimination in higher education.

At Minding The Campus, Louis K. Bonham, an intellectual property litigator, is optimistic that a return to originalism at the Court will reverse past decisions that paved the way for anti-White and anti-Asian discrimination at America’s colleges and universities, all in the name of “remediating” racism in America. However, he argues (correctly, I believe), that Supreme Court rulings will not stop the academics, who view affirmative action as a religion.

Moreover, suing the institutions won’t help because damages never fall on the people who have made the bad decisions. Bonham, therefore, suggests that, if the Court does end the racist abomination of affirmative action, red states should enact laws very explicitly attacking not just the institutions but also the institutional actors.

Image: College graduates.

The starting point would be laws explicitly making any preferences in academics (both paying jobs and student admissions), whether based on race or victimhood, illegal. Second, Bonham suggests an automatic and severe economic penalty for an institution found to have violated the state law: Students would be entitled to recover 50% of tuition and fees during the period in which the institution was violating the law.

But it’s the third proposed remedy that, to my mind, is the kicker: Any state law banning discrimination in academia would mandate that any employees involved in the discrimination would have their pay docked:

[A]ny 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.

I think that’s a wonderful idea. In the private sector, if a person costs his business millions (or even less), he’s out of there. In government and academia (whether public or private schools), there are no consequences for employees whose wrongful or unconstitutional actions are consistent with the leftist ethos. Making them personally liable as a matter of law will end this foolishness in a matter of months or even days.

The whole essay is excellent, and I highly recommend reading the whole thing.

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*Ketanji Brown Jackson, unlike most newbies on the Supreme Court, is a chatterbox. While the women generally speak more than the men, KBJ spoke almost three times as much as the next chatty justice, Amy Comey Barrett. A wise friend suggests that this is because she’s a politician, not a jurist. She understands that the Court will not support her extreme leftist views, but she is using the bench as a platform for advancing her ideology, just as a president makes stump speeches.