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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  June 29, 2007
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Topic category:  Other/General

The Constitution IS Color Blind

The conservatives are "aggressive"? Judicial restraint is not "aggressive." Judicial activism is.

Wendy Long, chief counsel to the Judicial Confirmation Network, reacting to the Supreme Court's decision in the racial preferences cases (Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education) holding that by classifying students by race, school districts are perpetuating the unequal treatment the Brown decision outlawed: "Today's decision is a victory for judicial restraint. The Court's majority just applied the Constitution, plainly, simply, and faithfully. The Constitution is color blind and does not allow preferences and distinctions in our society based on race."


It is especially fitting that the Supreme Court, 5 to 4, ruled that bussing white children long distances simply because they are white to achieve racial balance is unconstitutional, as racial panderer Durham County, North Carolina District Attorney Michael B. Nifong is being held to account, professionally, criminally and civilly, for persecuting members of the 2005-1006 Duke University Men's Lacrosse Team because they are white. (If they had been black, they would not have been prosecuted, much less persecuted, because that would not have permited Mr. Nifong to win that Democrat primary, but they are white. Still, holding that against them was not just, fair or constitutionally right.)

Associated Press writer Mark Sherman: "A half-century after the Supreme Court outlawed segregated schools, sharply divided justices clamped new limits...on local school efforts to make sure children of different races share classrooms.

The Constitution is not a "new" limit on government, Mr. Sherman.

Mr. Sherman: "The court voted 5-4 to strike down school integration plans in Louisville, Ky., and Seattle, a decision that imperiled similar plans that hundreds of cities and counties use voluntarily to integrate their schools."

Imperiled plans? If protecting the constitutional rights of young white students "imperils" race-based plans, so be it! The Fourteenth Amendment protects them from racial discrimination too.

Mr. Sherman's bias is evident in his news report: "The 5-4 decision, the 24th such split this term, displayed the new dominance of the court's aggressive conservative majority. The four liberal justices dissented."

The conservatives are "aggressive"? Judicial restraint is not "aggressive." Judicial activism is.

Chief Justice John Roberts in his majority opinion:."The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

That should be obvious.

Justice John Paul Stevens in his dissent: Citing Brown to rule against integration was "a cruel irony."

Justice Clarence Thomas in a separate opinion endorsing the ruling and taking issue with the dissenters' view of the Brown case: "What was wrong in 1954 cannot be right today. The plans before us base school assignment decisions on students' race. Because 'our Constitution is colorblind and neither knows nor tolerates classes among citizens,' such race-based decisionmaking is unconstitutional."

Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research and a leading voice of the African-American community since 1992., issued a statement welcoming the decision:

"Today's U.S. Supreme Court ruling against the use of racial preferences in public school admissions is being hailed by members of the Project 21 black leadership network as a necessary step in breaking down existing racial resentment and promoting true equal access to educational opportunity.

"'It's refreshing that the Supreme Court decided race-based admission standards are unconstitutional,' said Project 21 fellow Deneen Borelli. 'Racial quotas are harmful because they reinforce resentment towards minorities and increases racial tensions. Parental judgment and educational needs should be the basis for choosing what schools children should attend.'"

Like the Constitution, the criminal justice system should be color blind, to be fair and objective and avoid Duke and Scottsboro cases.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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