Is Affirmative Action Near Its Expiration Date?

Writing in the Washington Post, Megan McArdle points to the threat to racial preferences posed by the nomination of Brett Kavanaugh to the Supreme Court, noting that although his nomination has led to much handwringing over the fate of Roe v. Wade, the future of “another landmark case,” Regents of the University of California v. Bakke (1978), is also at risk.

It was Bakke, after all, that first approved “the Harvard Plan” of “diversity”-justified discrimination that is now under attack in federal court. In 1978, Justice Powell swallowed Harvard’s Kool-Aid claim that race was just “one factor among many” that could “tip the balance” in close cases. Given all the data that have been released in Students for Fair Admissions v. Harvard, however, it is no longer possible to support that argument unless one is employed by Harvard or wearing politically correct blinders.

I always find McArdle’s columns impressively written and argued, and usually, agree with her, but this column — like some of her earlier writing on race — not so much. Perhaps she has misgivings about racial preferences, but the reservation most forcefully expressed here is with the euphemisms used to disguise them.

Related: Harvard, Not Trump, Could Kill Affirmative Action

“We talk about ‘plus factors,’” she writes, “when we mean lowering the qualifying standards for black and Latino students; we talk about ‘diversity’ when we’re really trying to right past and present wrongs.” She cites approvingly Harvard law professor Jeannie Suk Gersen’s claim that all the talk about “diversity” sows “analytic confusion” by disguising the fact that affirmative action is really about helping “groups that have been wronged and held back.” Maybe that is what “we” are trying to do, but the courts have ruled out correcting past wrongs as a justification for discriminating because of race in the present.

Although Gersen volunteers that she has been subjected to anti-Asian stereotypes, she argues that “some amount of racial balancing seems unavoidable” since we “should not want the composition of our elite universities to be wildly out of proportion to the racial composition of our country.” Thus, she finds it perfectly acceptable, so long as “diversity … is central to an elite school’s mission,” that “an Asian may have to swim upstream to be admitted.”

Gersen does not mention if she cares whether elite universities are “out of proportion” to the religious, ideological, or economic composition of the country, or whether it matters if Chinese, Japanese, or Koreans are “overrepresented” among the Asians admitted. She does make it clear, however, that she has no objection to Asians swimming upstream against blacks and Hispanics, who are carried to admission floating on a strong current of racial preference. Her only objection to “race-conscious holistic review” is the “sub-rosa deployment of racial balancing in a manner that keeps the number of Asians so artificially low relative to whites” [emphasis in original].

“Swim upstream,” of course, should have set off McArdle’s euphemism alarm, since it hardly disguises the outright racial discrimination against Asian applicants. So, for that matter, should “race-conscious,” since the relevance of race is not that admissions offices are “conscious” of it but that they rely on it, often quite heavily, to benefit some applicants and burden others.

Related: The Coming Implosion After Diversity’s Victory

McArdle recognizes that “stripped of euphemism, racial balancing doesn’t look good,” but she’s reluctant to discard it because “it does have some merit: Elite institutions that systematically and markedly differ from the general population create a gaping social wound that never heals.” And she endorses Bakke’s “kludge” of “tacitly permitt[ing] semi-quotas” because otherwise “stark racial gaps” would have been “hard to close without it,” which “would have been morally questionable and politically disastrous.” She thus endorses John McWhorter’s recent argument in “Affirming Discrimination” that “[r]acial preferences were a fine idea in the 1960s and 1970s when they arose.”

At least McArdle is consistent. Back in 2009, she wrote in The Atlantic that even if “everything [critics] say about affirmative action is true,” so what? Even if “racial preferences … are a problem,” they are “a small problem for America…. Making race, or racial politics, the central complaint,” she continued, “makes it seem like your biggest policy priority is making sure that not one minority in the land gets anything they don’t deserve.”

Similar hand-wringing can be found in a recent Chronicle of Higher Education article by Mark Yudof, former dean of the University of Texas law school and, more recently, former chancellor of the University of California, and Rachel Moran, former dean of the UCLA law school. They note that there is “some irony in the fact that the complainants in the current Harvard investigation are not white but Asian-American.” That is only ironical, however, if one assumes that critics of racial preference care only about whites being disadvantaged, which is manifestly not true.

Related: Harvard Says Asians Lack Courage, Kindness, Likability

Like McArdle and Gersen, Yudof and Moran add that “Bakke has survived to this day, as have the ambiguities and anxieties that surrounded the case 40 years ago.” McWhorter thinks it should not have survived so long, that “racial preferences, in being maintained so far past their sell-by date, now maintain rather than break with toxic preconceptions we should be long past.” In other words, that racial preferences were fine … until they weren’t. Like McArdle, he appears a bit too willing to set aside the non-discrimination principle.

Despite their differences, McArdle, Gersen, and McWhorter all share one important similarity in their approaches to affirmative action: none of them pay any attention to what for a long time was the defining principle justifying racial equality: that individuals should be treated without regard to race, creed, or color. And, excepting a few passing references to Bakke and subsequent Supreme Court toleration of “diversity”-justified discrimination, nor do they pay much attention to the law, and none to statutory law.

McArdle concludes her article by observing that the next Supreme Court Justice will be faced “with an uneasy choice as the court steers us into an America where race is no longer a simple matter of black and white. But it will be much easier to navigate without a fog of euphemism clouding his view.”

By all means, let us burn off the fog of euphemism, but I strongly suspect that Judge Kavanaugh’s view of racial preference is not clouded. The choice confronting him or the Court is not difficult, complex, or ambiguous. It may be as simple as following black letter law.

Most of the criticism of Judge Kavanaugh from the progressive/academic/media/Democratic complex has concentrated on his alleged ideology. Typical is the NAACP’s description of him as “a dangerous ideologue whose extreme views on civil rights would solidify a far-right majority on the Supreme Court.” A more apt concern, at least regarding affirmative action, is not his politics; it’s what he said after being nominated to the Supreme Court by President Trump: “A judge … must interpret the law, not make the law. A judge must interpret statutes as written.”

In order to let the camel’s nose of “diversity” under the anti-discrimination tent in Bakke, Justice Powell ignored Title VI “as written.” He in effect took Congress’s months-long deliberations and the resulting text off the field altogether, concluding that whatever Congress said, it meant whatever the equal protection clause of the 14th Amendment means, and he concluded that “equal protection” was elastic enough to allow holistic reviews that allowed race to “tip the balance” in favor of members of underrepresented races. How embarrassingly ironic that the critics have proved more prescient than the sponsors of the Civil Rights Act or Justice Powell.

Over the years progressives have notoriously attempted, often with disappointing success, to substitute a “living Constitution” for the written one we have. In Bakke Justice Powell took that approach one giant step further, giving us a living (more like a dead letter) statute. And adding shameful insult to injury, some years after Bakke Justice Stevens completely reversed himself, concluding that Title VI was not dispositive because it was “poorly constructed.”

All those who believe that “discrimination” means what Senator Humphrey said it meant in 1964 and thus that individuals should be treated “without regard” to race must hope that Judge Kavanaugh — if he becomes Justice Kavanaugh — believes what he said about interpreting statutes as written. If he does, whatever his views on “civil rights,” the days of the regime of racial preference may be numbered.

John S. Rosenberg

John S. Rosenberg

John Rosenberg blogs at Discriminations.

3 thoughts on “Is Affirmative Action Near Its Expiration Date?

  1. We are too gentle. Too indirect. Too circumspect in our hints voicing our suspicions that Affirmative Action is “near its expiration date”.

    It’s garbage. It’s always been garbage. And worse than just plain old stupid garbage, this is and always has been systemic, deliberate, state-sponsored, hateful racist garbage. It is beyond the pale; it is intolerable; it is unconstitutional; it flies in the face of what this nation is all about. And yet we continue to play games with it, invite it in and make it comfortable — tell ourselves, “Well yes, it’s racism and wrong….but it’s wrong for a good cause.”

    God save us from the well-intentioned idiot who believes the end always justifies. But here we are, surrounded by idiots.

    McArdle quotes Harvard Law’s Gersen, who tells us, “affirmative action is really about helping “groups that have been wronged and held back.” But that is not the purpose of law….the law is not and should not be focused not on cross-generational blood-borne guilt. There is no such thing. We do not inherit, through our twining DNA a “note receivable” to be paid by some other poor slob who happens to inherit the equivalent “obligation owed”.

    Just because Bob over there looks like someone who was wronged 160 years ago — that does not mean that Bob was wronged…nor does it mean that Bob is owed any recompense or rebalancing for the unfair treatment which was experienced by some long dead “David” who had the same skin color as Bob.

    Where does this silliness come from?

    Yes Bob is a member of the same demographic group that Dave also belonged to. So what? Are we prepared to identify every individual’s group memberships (and they are legion) and then trace every group’s socio-economic-political debts over the last, say, 500 years? (Should 500 years be a sufficient cut-off or should we extend to the birth of Christ?) Are we then prepared to offer preferential treatment to every individual now living who can be associated with groups who suffered some historical wrong in the last 2000 years? Are we insane?

    Can we not recognize that every one of us has been preceded by millions of ancestors? Do we not understand that among those millions, some have undoubtedly behaved badly and treated others unfairly (even to the point of murder, rape, and robbery)? Do we not realize that the reason we’re here is because enough of our ancestors were winners in that constant struggle to survive (and that winning many times meant taking what was not naturally theirs)?? It is the nature of a life which until recently has been at best short, nasty, and brutish.

    But the insanity does not stop there, Gersen goes on to assert, we “should not want the composition of our elite universities to be wildly out of proportion to the racial composition of our country.” Why? Why does racial group membrship matter?

    What about the obesity composition of our country? Should Harvard Law ensure that 50% of each entry class is obese? What about hair color balance? Should we worry if 6% are not red-headed? That 10% are of Irish descent? That 1% are from Iowa? Why is demographic mirroring important in any way at all?

    Should I in fact worry that my cardiac surgery team is not 13% Black and 10% Irish and 50% female? Or should I simply worry that they’re outstanding at cardiac surgery?

    Why should any University or Corporation spend even a second concerned with demographics when their exclusive focus should be Quality (which is hard enough to get even when we try).

    McArdle jumps in, saying, “stripped of euphemism, racial balancing doesn’t look good,” but she’s reluctant to discard it because “it does have some merit: Elite institutions that systematically and markedly differ from the general population create a gaping social wound that never heals.”

    What???
    If we’re going to strip euphemisms let’s strip them entirely.
    Racism doesn’t look good ….because it’s racism! What more needs to be said?
    And racism has no merit; none whatsoever. It is wrong; it’s always been wrong; it will always be wrong. To discriminate for or against someone purely because of skin tone is just flat out horrible. It’s also immoral, illegal, and unconstitutional. How can there be any doubt?

    But McArdle somehow has come to feel that unless we systemically behave as racists, that the resulting racial imbalance (because she assumes Black people will consistently be subpar performers (speaking of racism)) in elite institutions will “create a gaping social wound”.

    Kinda like the NBA and the NFL, I guess.

    Because clearly those elite institutions who concern themselves only with how well someone plays basketball or football….their distinct “racial imbalance” has obviously (??????) created gaping social wounds…..where?????

    No – the answer is exceedingly simple and we’ve known it forever:
    Two wrongs do not make a right.
    Sin is not blood-borne.
    Guilt does not pass from generation to generation.
    Babies do not enter the world carrying “you owe be big time” labels.
    And just because you look kinda like someone who did a bad thing 3-4-24 generations ago – that does not mean YOU are responsible for that bad thing.

    Long past time we grew up and stopped what should have been stopped long ago.

  2. In 2015, my grandson graduated from high school with a GPA of 4.0, including acing 7 AP/honors classes. He was #2 in a class of 469 seniors. His SAT were 750 verbal, 790 math and 770 in both Calculus and Physics. He was awarded National Merit Scholarship, a scholarship from the Daughters of the American Revolution and was named his city’s student athlete of the year. Their golf team took the state 6A championship. He applied to Princeton, Columbia and Penn. They all rejected him.

    Princeton admitted 53.4% “persons of color, 10.7% alumni children, 12.7% international students (including illegal aliens. They are intentionally violating Title VI of the Civil Rights act of 1964. Here’s a link to Princeton’s Dean of Admissions crowing about discriminating against white males.

    1. He’s will be the better for it.

      Institutions that are more concerned with demographics than quality….who believe that image is everything….and who are willing to sacrifice their ideals in deference to the 4 Headed God: Diversity, Inclusion, Equality, and Social Justice… those are the places and people who have already sold their souls.

      Nothing beside remains. Round the decay
      Of that colossal Wreck….save corruption.

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