After 45 years of bad decisions rationalizing discrimination outlawed by Title VII of the 1964 Civil Rights Act and the 14th Amendment, the Supreme Court finally voted 6-3 to end affirmative action and the use of racial preferences in college admissions. This outcome joins the Dobbs vs. Jackson decision last June as another major pushback against activist Supreme Court jurisprudence, and a restoration of the Constitutional guardrails against an overweening federal government that bypasses the sovereign people and impugns their rights.
Racial set-asides were midwifed in the 1978 Regents of the University of California vs. Bakke decision that created by fiat “diversity” as a “compelling state interest” justifying discrimination. Since then various minor adjustments have been made in other decisions such as Grutter vs. Bollinger (2003) and the two Fisher vs. University of Texas cases (2013, 2016), which validated the magical thinking of “diversity” and the “broad state interests” and “educational benefits” it supposedly serves.
None of these decisions addressed the central begged question in affirmative action jurisprudence. As Justice Clarence Thomas’ dissent in Grutter put it, the majority “refus[ed] to define rigorously the broad state interest” served by “diversity,” and thus demonstrate specifically the “educational benefits that flow from student body diversity,” as Justice Anthony Kennedy said in the second Fisher case.
As a result, over the years “diversity” has metastasized throughout the body politic, from school curricula to entertainment–– and has even reached corporate board rooms in the guise of “ESG,” environmental, social, and corporate governance guidelines for investment. This expansion has hollowed out the principle of individual merit, and eroded the notion of individual rights and the virtues of independence and self-reliance. That’s what happens when one branch of the government, the one most unaccountable to the people, enshrines in law a politicized, incoherent idea.
The other problem with this “diversity” is that its components are overly vague to the point of meaninglessness. Worse, it traffics in the broad categories of “Social Darwinism” and “scientific” racism that led to illiberal, if not inhumane policies like exclusionary immigration criteria based not on qualities, talents, and character that could benefit the U.S., but on categories based on superficial physical characteristics that reduce millions of people to crude, tendentious stereotypes.
Real diversity is much more complex and fine-grained than that. It appears at the level of ethnicity defined by national origins, language, dialects, customs, mores, folkways, history, regional differences, faith, occupations, education, and political ideologies. Preferences based on the empty category “race,” however, ignore all these important contributors to identity. Instead, “protected classes” are reduced to an identity based on victimization by “whites,” another meaningless, reductive category that relies on ignoring true diversity. Thus “race” is a politicized pseudo-word, suitable only for leveraging factional power and influence for some groups of citizens at the expense of others.
These categories, moreover, ignore how ethnic identities in America are shaped by American popular culture and consumption. As UCLA historian Russell Jacoby has written,
“The issue is how different these ‘cultures’ are from each other and the dominant American culture. Do they constitute distinct structures of work, living, and beliefs? In their dress, activities, religion, and desires these cultures are becoming more alike. Only in the current ideological climate is this news or heresy . . . America’s multiple cultures exist within a single consumer society. Professional sports, Hollywood movies, automobiles, designer clothes, namebrand sneakers, television and videos, commercial music and CDs: these pervade America’s multiculturalism . . . The multiple cultures define themselves by their preferences within a consumer society, not by a rejection of it.”
Again, politics, not reality, determines the meaning of “diversity” by ignoring what makes people similar by promoting superficial, often invented identities.
As for the alleged “benefits” that rationalize Constitutionally proscribed discrimination on the basis of “race,” these have been scanty and poorly documented. Claims of improved inter-ethnic relations and understanding, for example, is belied by the racialization and exacerbated racial divisions. Segregated courses, programs, fraternities, sororities, dorms, scholarships, grants, graduation ceremonies, social space, and campus facilities confine students in separate ethnic silos.
Moreover, instead of benefitting minority students, these preferences often do them harm. Caused in part by the decline in K-12 educational outcomes, qualified minority candidates are few, and top-ranked schools compete fiercely for them. This often leads to mis-matching students to the university courting them. Students who could flourish in a second-tier university, or benefit from more preparation in a junior college, are put in a scholastic environment in which they struggle, as would a white student with similar qualifications.
Richard H. Sander and Stuart Taylor Jr. in their 2012 book Mismatch, document the consequences for these students: “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.”
Universities have responded to these problems by watering down admission standards and criteria for “protected” classes, grade inflation for all, and the proliferation of dumbed down curricula and majors. For generations of American students, the boons of liberal education like developing critical thinking skills and acquiring cultural capital are increasingly being lost. Along the way, they also have punished high-achieving applicants, most egregiously Asian students, on whose behalf the plaintiffs in this case, Students for Fair Admissions Inc., filed the suits.
Asians, indeed, have particularly been treated unjustly. As Jason Riley reported a year ago, “Duke economics professor Peter Arcidiacono demonstrates that an applicant to Harvard with typical credentials has a 25% chance of admission if he’s Asian. But if you leave the credentials the same and change his race to black, the chance of admission climbs to 95%. For out-of-state applicants to UNC, the racial disparity in the chances of admission is even starker . . . . Obviously, these schools are using race as the decisive factor”––something several earlier Supreme Court decisions have proscribed.
Finally, as welcome as this decision is, it won’t stop the illegal use of race in university admissions. In deep-blue California, Proposition 209 passed in 1996 forbids considering race, sex, or ethnicity in hiring, awarding state contracting, and academic admissions. Fourteen years later, an even bluer California voted against a proposition overturning 209, by a margin larger than 209’s approval.
I happened to be a university department chair in California from 1996-2000, and as such had to be involved in several faculty hires. The spirit of affirmative action––captured in a jingle cynics used: “If you’re black, come on back. If you’re brown, stick around. If you’re white, take a hike” ––still ruled in hiring decisions. A mostly progressive faculty and administration were supporters of affirmative action, and were motivated to hire “people of color” whenever they could.
So, despite Prop. 209, the racialist procedures in hiring were still operative. The race and “gender” of the hiring committee and the job applicants were still recorded, and an “affirmative action officer”––a faculty member not from the department––was still required to check both groups for compliance with hiring rules, and monitor meetings and decisions for any signs of “racism” or sexism. The only thing that changed was the AA officer’s title: Instead of “affirmative action officer,” he was called the “EEOC (Equal Employment Opportunity Commission) officer.” That’s because whatever a state’s may voters decide, most colleges take federal money, and thus are bound by the Fed’s rules.
It is yet to be determined if such institutional rules and policies, or other evasions will be found un-Constitutional under the new law. Meanwhile, universities will continue to rely on creative work-arounds to evade the law: for example, adding to admissions documents a personal essay responding to race-proxy questions such as “describe obstacles you have overcome”; or using subjective interpretations of the applicant’s “sociability” deficit in order to deny admission––a notorious method universities use to reduce the numbers of Asians whom they deem deficient in social skills; and, most despicably, eliminating standardized tests like the SAT that in practice, diminished the exclusion and quotas aimed at Jews and other minorities.
So two cheers for the Supreme Court for finally ending such a blatant contradiction of the Constitution and the Civil Rights Act, not to mention our foundational principles such as equality under the law, and the unalienable rights of individuals. But it’s going to take a lot more lawsuits adjudicated in the Supreme Court to stop universities from violating those principles.