The breaking of the conventional principle of equality before the law.
In December 2011, you could buy a Bitcoin for the sum of two American dollars. In November 2021 the digital asset reached its highest historical price by placing itself in the sum of 69,044 dollars per unit. Today, when many finance gurus predicted that their price would be estimated over $100,000, the same around $25,000.In the last 50 years, the doctrine of state intervention in private activity to impose regimes of positive discrimination was the same luck as the cryptocurrency mentioned. For, in interpreting equality before the law in a formal sense, the caselaw understood - over the years - that this equality must be considered taking into account the characteristics proper to belong to some disapproved group of the individual to whom they want to apply the policies. This situation - today - is being mentioned at levels far from the forecasts thought not more than 5 years ago.
That is, in principle and as a general rule, we are all equal before the law by the only fact that we are people, but over time, that equality was regulating depending on the vulnerable origin - or not - of certain groups or individuals.
The case "Students for Fair Admissions Inc. v. President and Fellows of Harvard College" (29/06/2023).
For this modified concept of equality, the United States Federal Justice ran an association of university students and welcomed a demand against Harvard and UNC (University of North Carolina). In this case, in particular, this group claimed that the existence of racial quotas (which the court had validated in a failure of about 20 years ago) violated their access to universities and caused the principle of equality not to be chosen for applicants for their capacity or academic background, but for their skin color.Surprisingly, from the perspective of the last precedents, the Court failed in favor of the students. For this purpose, he claimed that the quota rules should be established on a temporary basis and not remain forever, as this would reinforce stereotyping.
It also referred to the meaning and purpose that racial vacancies should have in these applications. He stated that the universities demanded could not test the properly measurable goals of their racial admission programs. This condition would lead to using parameters that generate racial stereotypes.
Finally, the Court concluded that "the students must be treated based on their experiences as individuals, not taking their race as the basis." And he ended up saying that "many universities for a long time did exactly the opposite. And in this practice, they mistakenly concluded that the touchstone of individual identity is not the overcoming of challenges, the construction of skills or the teachings seized, but the color of their skin. Circumstance that cannot be tolerated by our constitutional history."
The case "303 Creative LLC v. Aubrey ELENIS" (30/06/2023).
303 Creative LLC is a unique member society integrated by Ms. Smith, who began developing in his business a commercial branch dedicated to selling web pages for married couples. Smith is now deeply rooted in her religious beliefs and asks the state of Colorado to urge her to sell her product to homosexual couples, claiming that, through her web pages, she exercises her freedom of expression protected by the First Amendment, hierarchically superior to the Public Acommodation Laws.Most of them take place by planting and repealing the decision of the Supreme Court of Colorado, in whose order claims that the First Amendment contemplates the United States as a country where people are free to express themselves and think as they please and not as the states love each other.
In fact, as provided for by the vote of the minority, the problem of this decision lies in a problem which was believed to have been overcome for more than 50 years in that country. The Public Acommodation Laws were created so that, among other things, anyone who offers a product or service to the public, has the obligation to sell it without looking at who, avoiding situations already known in that country that - according to the minority - the doctrine of this failure would guarantee. That is, posters in the trades where it is expressly settled that certain people are not accepted by their color, sex, religion, sexual orientation, etc.
Conclusions and final considerations.
As for the flaw "303 Creative LLC", we can conclude that the world is changing. The economic, political and social crises are making strong actors who were already believed to be defeated. It begins to alert a sector that is rooted in its constitutional rights to discriminate. This situation, perpetrated in time, makes us return to trades that do not accept people for their race, religion, color or ancestry, as 80 years ago.Distinct is the case of failure of university applications. The Court concludes that, with the measures of positive discrimination, a system is established which breaks with the principle of equality. This violates access to university education to other actors who, by their ability and abilities, would be in a position to enter. Here we are in a debate on the purpose of quota systems. Positive discrimination measures must be temporary, the Court says. With this last statement, we coincided. We must stop establishing tables that create stereotypes and start generating situations of preference only after the analysis of the situation of a particular individual. For, as SCOTUS concludes, "nothing in this failure forbids universities to consider applicants of how their race affected their life, whether through discrimination, inspiration or other circumstances."
The decision of 303 Creative is, in my opinion, unacceptable in a modern society.
On the other hand, the resolve against Harvard acquires a certain sense every time we must reconsider the doctrine of "unvented groups" and take it to a concept of "unvented individuals" to the effects of thinking equality before the law beyond the formal sense. Times are changing. Societies become more conservative. We need to find the proper balance.
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