Affirmative Action on the Ropes?

A lawsuit against Harvard threatens to expose what “diversity” really means.

Bruce Thornton is a Shillman Journalism Fellow at the David Horowitz Freedom Center.

A case is currently under litigation that however it is decided, will likely reach the Supreme Court. There the diversity industry may face a challenge that brings the institutional racism of affirmative action and its baleful effects to an end.

In 2014, an organization called Students for Fair Admissions sued Harvard University for excluding Asian students who were far better qualified than other applicants who had been admitted. Last November the Justice Department opened an investigation into Harvard’s admission practices, and is threatening to sue the university, throwing its support behind the plaintiffs. The plaintiffs have viewed admission records through discovery, and want them publicized because the evidence for arbitrary and discriminatory evaluations is so obvious no trial is necessary. More recently, the Trump administration has rescinded Obama’s 2011 rule advising universities to use race as a criterion in admissions.  Finally, the retirement of Justice Anthony Kennedy creates an opening for a Constitutionalist judge who will not, as Kennedy has serially done, subordinate the law to politics or social engineering.

Such portents are heartening, for race-based policies of the last forty years have rested on a preposterous justification on the basis of “diversity,” the “compelling state interest” used to violate principle and law. Indeed, the word recurs like a mantra in Supreme Court decisions. In the 2016 Fisher vs. University of Texas case, for example, Anthony Kennedy in his majority opinion wrote, “It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

The word “diversity” in that sentence has no more real meaning then than it did in 1978 when Chief Justice in Bakke vs. University of California Lewis Powell conjured it out of thin air to keep the practice of discrimination on the basis of race viable by cleansing it of the stain of numerical quotas. Since then, neither a coherent definition of diversity, nor any empirical evidence of its efficacy in improving educational outcomes has appeared. It is a term of politics rather than law that evokes our e pluribus unum myths of immigration and civic identity.

Indeed, “diversity” is like phlogiston, the 18th century substance invented to explain combustion, not based on empirical research, but on an idea that superficially made sense. The theory can be boiled down to circular reasoning:

What is phlogiston?

It’s the substance that makes things combust.

What makes things combust?


“Diversity” is similarly used:

What is diversity?

It’s what improves educational outcomes and benefits society.

What improves educational outcomes and benefits society?


The difference, however, between phlogiston and diversity is that empirical research and proven facts sent phlogiston to join other nonsense like astrology, phrenology, and alchemy.

Diversity, then, survives through institutional inertia and political utility, not because it benefits students or improves intellectual activity or serves a state interest. Justice Clarence Thomas’ dissent in the 2003 Grutter vs. Bollinger case identified the repeated fatal flaw of these decisions: the “refusal to define rigorously the broad state interest” served by “diversity.” The boons of diversity were merely assumed a priori, as Justice Sandra Day O’Conner did in the same decision when she pronounced that the Constitution “does not prohibit the [University of Michigan] law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

Even worse, in the case of diversity, the evidence that does exist fails to show how exactly diversity improves educational outcomes for students or serves society. Quite the opposite: forced diversity has encouraged the balkanization of college campuses, where students segregate themselves into tribes with separate dorms, graduations, fraternities and sororities, clubs, and even spaces for socializing. Worse yet, rather than benefitting minority students, diversity more often harms them. Indeed, in their 2012 book Mismatch, Richard H. Sander and Stuart Taylor, Jr. document how affirmative action programs harm minority students’ chances to succeed by mismatching them with schools with much higher standards for performance and achievement. The result for black and other minority students is much greater rates of dropping out, earning poor grades, or finding refuge in easy majors like ethnic studies that have very few prospects for employment. They also have a harder time passing licensing tests such as the bar exam, and earn fewer degrees in science and engineering than whites and Asians.

Another flaw of the argument for diversity’s “educational benefits” is that they usually flow in one direction: from minority students to whites. If that were not so, then we would be agitating for the 106 traditional black colleges to create more diverse student bodies so their students can share in these same benefits those in multiethnic schools do. But in practice the presumption is that the presence of minority students on a campus benefits white students by having them interact with different cultural practices and points of view. That this is the underlying assumption about the benefits of diversity is obvious from the oral arguments in the first Fischer v. University of Texas trial, when the University’s lawyer explicitly said that a minority applicant from a privileged background would add diversity to the university that a lower class white student wouldn’t.

Aside from the peculiarity of making black American college students some sort of good-will ambassadors responsible for enlightening benighted whites, that notion is preposterous––and not just because of the general self-segregation already mentioned, which prevents these mythic Socratic dialogues between minorities and whites. American minorities are still Americans: shaped by the same popular culture, patterns of consumption, and tastes in food, movies, television show, and video games. It’s only the illiberal identity politics in which minorities have been marinated for most of their lives that makes many of them think they are somehow radically different from their white colleagues.

Diversity’s persistence, then, is clearly due not to its value for students and society, but to a confluence of university and race-industry interests in maintaining multiculturalism. The bastard child of the Frankfurt School cultural Marxism, multiculturalism is not, as it often markets itself, about acknowledging and respecting the different traditions and ethnicities that have contributed to American identity. That conversation began in education nearly a hundred years ago as part of the debate between what was then called “pluralism” and “assimilation.” Pluralists back then made the same argument the diversicrats make today, as can be seen in this statement from 1937: “No one culture contains all favorable elements, but each group that makes up the total American population has unique values, and . . . the nation will be richer and finer in its cultural make-up if it, the country, conserves the best that each group has brought.” The writer goes on to argue that “the fundamentals of their heritages be preserved for generations.”

That argument is the bait-and-switch multiculturalists use to hide their real purpose: promoting the leftist melodrama of evil white racist and xenophobic capitalists, imperialists, and colonialists oppressing and exploiting their victims “of color,” who deserve various forms of reparations for that sorry record of oppression. The latest iteration of this reductive and selective history is the notion of “white privilege.” This idea shares the same flaw as diversity: it grossly simplifies into a crude caricature a complex human being living in a multifaceted historical moment and culture, with a personal diversity of social, economic, and educational capital. The remarkable, genuine diversity of Americans and their history is ignored in order to serve one political ideology’s goal: the progressives’ aim to “fundamentally transform America” by creating a permanent majority of leftist coastal elites and their minority clients.

This political bloc, moreover, is not diverse at all, but ideologically monolithic and united by two shared political goals. One is to centralize, increase, and concentrate federal power so that government technocrats increasingly take over the business of life and politics on the basis of a “science” superior to tradition and common sense. Another is to weaken the traditional notions of American exceptionalism and goodness, in order to further the ceding of our sovereignty to transnational elites. A third is to finance this project by redistributing wealth from some citizens to others, and thereby secure a class of dependent electoral clients and fund their federal agency minders. Affirmative action has been one instrument for achieving this goal by dividing Americans into victimizers and victims, and then using government to punish the former and reward the latter.

And if that’s not reason enough to discard affirmative action, then the simple fact that these policies as implemented violate the Civil Rights Act and the Constitution is sufficient for ending this patently dishonest and politicized practice. Finally, the lawsuit against Harvard promises to tear away the veil of “privacy” that has camouflaged the gross injustices perpetrated for forty years by university admissions policies. And if it does succeed at exposing “diversity” to the disinfectant of transparency, then maybe we can get the university back to the only diversity that really matters: the diversity of minds and points-of-view from which genuine intellectual progress comes.


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