Editors’ note: The following essay forms part of “Affirmative action & the law: a symposium,” a special section exploring topics to be addressed in the current Supreme Court session. Roger Kimball’s introduction can be read here.
The most merciful thing in the world, wrote H. P. Lovecraft, is the inability of the human mind to correlate all of its contents. Likewise, the most powerful advantage of the American regime is the inability of the public to comprehend all of its depredations. No revolutionary party has overthrown the government; no military strongman has canceled the Constitution. The forms of American government persist. Yet few Americans dare to stand up to the system that now dominates them, in part because it goes unnamed and unidentified.
What follows is an attempt to correlate all of the regime’s contents.
Life in these United States
Let us start with what it means to live, work, and raise a family in the United States today. Imagine, say, a middle-aged, upper-middle-class professional. Call him Bob. Bob is among the lucky ones. He has a degree from a selective college, is happily married, and earns enough money to raise a family in a safe neighborhood and send his children to “good” schools (that is, schools where the children are relatively well-behaved and parents eager to volunteer). Bob can afford two residences, plus vacations. Life is not without its stresses and inconveniences, but overall it is good for the American upper middle class.
At the same time, Bob knows that his good fortune would evaporate with just one impolitic move. Three years ago, his employer announced that electronic-mail signatures could, if employees wished, include “preferred pronouns.” Within a day, all employees under age thirty-five and perhaps half of the others had added “she/her/hers” or “he/him/his” to their emails, or occasionally (particularly among the human-resources staff) “they/them/theirs.” Until recently, Bob would have laughed if anyone had asked him to confirm that he is a male. Now his employer states, as a matter of policy, that volunteering one’s pronouns encourages others to do the same, which “helps prevent misgendering and creates a more welcoming workplace for all.” By negative implication, by failing to add “he/him/his” to his own signature line, Bob would be creating an unwelcoming workplace. Rather than risk being accused of transphobia, Bob goes ahead and has his pronouns automatically added to every email.
Until recently, Bob would have laughed if anyone had asked him to confirm that he is a male.
It is autumn now. Nevertheless, the rainbow flag flies in virtually every employee’s office. lgbtq Pride Month, after all, was only five months ago. To celebrate, Bob’s employer had hung nylon “pride” flags in every corridor and pasted them into every email blast. The cafeteria was draped in so many varieties of banners as to resemble a queer Cathédrale des Invalides. On each floor, rainbow hand flags were made freely available for the taking. Again, all the younger employees and at least half of the older ones planted them in their pencil stands. Rather than be seen to fail to support lgbtq rights, Bob decides to take a flag and display it in his own office.
The firm’s pronoun and Pride Month initiatives have a source. For years, Bob’s employer has hired staff who work full time to promote “diversity, equity, and inclusion.” In 2020, his firm hired a “Chief Diversity Officer” who boasted two decades of experience, including at two major U.S. companies, in the field of diversity, equity, and inclusion. According to firm press releases, she is frequently quoted in Diversity Professional, a magazine founded in 2016 to “spotlight the work of professionals in diversity, equity, and inclusion.” The Chief Diversity Officer reports directly to the chief executive of Bob’s firm.
Diversity training has been a constant of Bob’s professional life. Several times a year, a consultant comes in to provide mandatory training. (In New York, related sexual-harassment training is now required by law.) The buzzwords, Bob notices, keep mutating. About ten years ago, employees were exposed to the reality of implicit bias. Racism is rarely conscious, Bob learned, and is more often buried deep in the psyche. Later the consultants revealed the power of compounded discrimination. Like interest, success (or the lack of it) is accretive. Thus, if Bob fails but once to let a diverse colleague answer a question in a client meeting or to help rewrite a diverse colleague’s poor first draft, he could, it turns out, deprive that colleague of critical experience and ultimately destroy her career. After the George Floyd riots, the consultants and the firm leadership became more emphatic. It is not enough for the firm merely to say that it believes in diversity. The firm must instead become a consciously anti-racist institution that “interrupts” racist practices before they can prevent the achievement of a diverse workplace.
About ten years ago, employees were exposed to the reality of implicit bias.
Within the firm, diversity is an obsession. Every department has quarterly meetings with the firm’s Chief Diversity Officer and her staff to review progress and, as the mantra goes, “hold ourselves accountable.” The population of the “diverse” is meticulously counted and tracked; those who check a “diverse” box are treated as rare orchids who must be safeguarded and cultivated, with training and mentoring programs and priority for advancement. The firm’s goal, say the executives, is to increase the percentage of the diverse at every level of management. Nobody says it out loud, but the logical inverse is that the percentage of whites must constantly decrease. Bob feels lucky to have ascended when he did before the door to his kind closed further.
In advancing diversity, equity, and inclusion, Bob’s firm adheres to “best practices.” Those include publicly marking each event on the liturgical calendar of diversity: Black History Month (February), Asian American and Pacific Islander Heritage Month (May), Pride Month (June), Juneteenth, Diwali, and Global Diversity Awareness Month (October). On each occasion, the firm provides official “resources,” such as free copies of books by Ibram X. Kendi (a MacArthur “genius grant” recipient and the author of How to Be an Antiracist) and Robin DiAngelo (the author of White Fragility). A consulting firm called Paradigm, which helps its clients “design and deliver impactful dei strategies,” also regularly organizes events with anti-racist speakers.
From time to time, Bob’s employer publicly announces its position on political matters. During the George Floyd riots, for example, it issued a statement solemnly condemning Floyd’s death, agreeing that blacks fear for their lives every day as a result of systemic racism, and expressing support for the Black Lives Matter protests. (For the firm’s secretaries, who boarded up and cowered in their houses during the riots, the word “protests” read as an understatement.) A few months later, after violence against Asians made the news, the firm put out a carefully crafted statement condemning the attacks, avoiding mention of any actual perpetrators (but insinuating that Republicans’ noting of covid’s origins in China were to blame), and urging anti-racist coalitions to remain united. Corporations across the nation released virtually identically worded statements all at the same time.
Conservative ideas are unthinkable and possibly simply unthought.
Within Bob’s company, to show any lack of enthusiasm for diversity is to forsake any hope of promotion, not to mention to risk being fired. According to its diversity and workplace-harassment policies and training, a speaker’s intent is irrelevant. On the contrary, if a remark is experienced as unwelcoming, that potentially creates a hostile environment for anyone in a protected class. Thus, the firm prohibits asking any colleague or job candidate such innocent questions as where he or she is from. As a result, conversations at work are limited to pleasantries. Conservative ideas—those of, say, Thomas Sowell or even Daniel Patrick Moynihan—are unthinkable and possibly simply unthought.
Overall, at work, Bob knows how to get by. His children, by contrast, are in constant danger. Take sexual education. In Bob’s day, sex ed was clinical and boring; he and his peers had to memorize the names of each part of the reproductive system. (Parents back then who objected to sex ed lost to those who argued that teenagers can’t be stopped from having sex, so they may as well learn how to do it without getting pregnant or contracting a disease.) Bob’s own children now learn virtually nothing of the plumbing. In place of biology, the schools teach “sexuality” and “gender.” Pupils are introduced to a bewildering array of sexual and gender “identities,” from gay and lesbian to nonbinary and trans. Textbooks insist that sexual attraction and gender expression have nothing to do with genitalia, chromosomes, hormones, or secondary sex characteristics (which are downplayed in any event). Sexual attraction and feelings are as fluid as unrefrigerated Jello.
Not surprisingly, all those different identities find takers. Every grade has moody kids who announce that they are gender-nonconforming and insist on being called “they.” Some go all the way and cross-dress; Bob knows of a few who are on the path to surgery. One friend’s son, formerly a sporty youth who played peewee football, now sports pearl necklaces, applies makeup, and grows his hair long. His parents, told that they have a duty to affirm their child’s identity, are relieved when he announces that he is merely gay and not transgender.
Sexual attraction and feelings are as fluid as unrefrigerated Jello.
Gender identity at least draws attention from the even more perilous topic of race. In the wake of the George Floyd protests, one school announced that it was “decolonizing” its curricula. Shakespeare was thrown out, multicultural standbys from Bob’s own high-school days (Toni Morrison, Sandra Cisneros) were given pride of place, and authors Bob had never heard of were added. A handful of white male authors were retained, provided that they could be linked to a critique of white people. Bob was pleased to see Heart of Darkness still listed.
Meanwhile, the school proclaimed its dedication to becoming an anti-racist community. Both teachers’ employment and students’ enrollment contracts now include anti-racist pledges. Parents must participate once a semester in school-wide anti-racist programs. The school, Bob noticed, has simply stopped hiring white teachers. The remaining ones will eventually retire.
Fortunately, Bob’s children know by instinct not to say anything that could get them in trouble. When a classmate announced that “all British people, other than bipocs, are disgusting and should die,” Bob counsels his daughter not to be goaded into disagreeing. Still, Bob looks around for signs of rebellion. All in vain: every edition of the high-school paper, for example, features two or three student editorials with the same argument as the last one, namely, that minority group X feels unwelcome, there was a recent (trivial) incident manifesting a lack of respect, and the school needs to do more to address its systemic biases against the group’s members.
Back at work, Bob notices that résumés of recent graduates almost all have some signal of support for the work of diversity, equity, and inclusion. Thus, in addition to Teach for America after college, a candidate will say that she had “led diversity programming with a focus in educational equity”; besides having won a prize for an undergraduate thesis, the candidate will have written on “gender disparities in food insecurity.” Bob silently concludes he should avoid interacting with the younger generation as much as possible.
The regime’s ideology
The foregoing account of Bob’s life is not exaggerated. It is based entirely on real life. Adjusting for socioeconomic class and profession, a similar story can be told of many trying to make a living in the United States. Nor is there any escape. The universities now evaluate and promote faculty based on their commitments to anti-racism. Whole fields of inquiry, from classics to medicine, are given over to woke moral panics. As Zach Goldberg has documented, The New York Times and its epigones have been aggressively pushing the concepts of systemic racism, white fragility, and white privilege. In 2020, mobs looted businesses and torched cities and were rewarded with leniency, while the organizations that encouraged them were showered with billions in corporate donations. At the highest levels of government, President Biden has issued executive orders demanding that every agency conduct an “equity” audit. In urban areas, police and prosecutors will not stop or punish crime. Anyone who dares exercise the right of self-defense—that most fundamental of all natural and inalienable rights—against a criminal who is black risks having his life destroyed, either by an online mob or by government prosecution.
In urban areas, police and prosecutors will not stop or punish crime.
Not long ago, the erstwhile Soviet dissident Natan Sharansky proposed a simple test to distinguish free societies from their opposite. “If a person cannot walk into the middle of the town square and express his or her views without fear of arrest, imprisonment, or physical harm,” he wrote in 2004, “then that person is living in a fear society, not a free society.” Suppose that in 2022 an American does walk out alone into a crowded street in an American city and declares, say, that blacks on average happen to commit an order of magnitude more violent crimes than other races, which entirely explains why they are arrested and imprisoned more. Regardless of how one feels about the argument, it is doubtful that the authorities would protect the speaker from physical harm. If the incident goes viral, the speaker will in any event be rendered unemployable. By the town-square test, therefore, the United States is not a free society at all. An American cannot feel safe publicly challenging—even truthfully—the premises of the reigning ideology.
That ideology is ubiquitous. Oddly, it keeps attracting obscure labels, such as “Critical Race Theory,” “cultural Marxism,” or “the successor ideology.” But the idea is very straightforward. Vice President Kamala Harris put it succinctly in 2020 when she stated that “Equitable treatment means we all end up in the same place.” In other words, any difference in outcome between races, ethnicities, the two sexes, or any other politically salient dimension is conclusive evidence of injustice and discrimination. For example, relative to their share of the population, Puerto Ricans are more likely to be in prison and less likely to be theoretical physicists. According to Harris, the only possible cause of those disparities is racist oppression. If only the racism could be ended, the disparities would disappear.
Harris’s ideology is not new. Vice President Richard Nixon, of all people, was perhaps the first to articulate it. In his 1960 report to President Eisenhower on federal contracting, Nixon observed that overt discrimination was not actually widespread. Rather, differences in outcomes between whites and blacks stemmed from employers’ failure to establish a “positive policy” to rectify imbalances. In other words, institutional discrimination was holding black Americans back.
Five years later, in the wake of the Civil Rights Act of 1964, President Lyndon Johnson proclaimed that “freedom is not enough.” Civil rights, that is, were insufficient. “You do not,” Johnson argued, “take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others.’ ” On the contrary, Johnson sought “not just equality as a right and a theory but equality as a fact and equality as a result.” Interventions to achieve equality of result, while bold, would ultimately succeed, he believed. The reason is that “men and women of all races are born with the same range of abilities.” In short, equality of outcome is the natural condition, provided that structural handicaps are removed.
To be sure, Johnson had no acquaintance with the radical vocabulary that later arose to explain why inequality persists. Thanks first to academics, who for years were treated as a laughable fringe even in the academy, then to young popularizers in the media, and then to a whole industry of consultants and bureaucrats, we now hear daily of such things as “systemic racism,” “white privilege,” “microaggressions,” or simply “whiteness.” These concepts merely embellish Johnson’s core idea. Equality of result is the natural outcome. The failure to achieve it, therefore, must be due to some evil or other. As the evil cannot be obviously detected (and, indeed, its existence is often belied by the facts), it must be elusive and invisible. Johnson himself acknowledged that the causes of inequality are “complex and subtle.” He simply lacked the training to say the same thing in today’s idiom of flatulent theorizing.
In the wake of the Civil Rights Act of 1964, President Lyndon Johnson proclaimed that “freedom is not enough.”
The ideology of natural intergroup equality has two qualifications, which are important in practice though seldom candidly stated. The first is that not all identity groups count. Nobody demands the overhaul of society in order to make it fair for the short, the unprepossessing, or the left-handed, despite the obvious handicaps that all those groups face every day. Once overlooked groups may suddenly achieve victimhood status. Homosexuals, for example, went in a generation from loathsome to likable. Transvestites, once objects of derision, vaulted in a matter of years to the top of the victimhood heap.
The second qualification is that not all unequal outcomes are disfavored. On average, Nigerians, South Asians, and Japanese all earn significantly more than whites in America, yet nobody questions their privileges. (Jews, who for decades have been awesomely overrepresented in finance, law, science, media, and business, are a borderline case: they can be accused of privilege as whites but not as Jews.) Conversely, the underperformance of white ethnicities such as the Scots-Irish or the Old French attracts no attention. It took a Nobel Prize winner, Angus Deaton, to point out the spiking mortality of working-class American whites. Under the American regime, it is only the relative success of whites, males, and Christians—those who figured most prominently in the founding and flourishing of the United States—that must be corrected.
Origins of the regime
For many, dumbfounded by the regime’s rapid advance, the only possible solution is to argue against its tenets. Thus, in one of movement conservatism’s periodic, if fruitless, declarations of unity, a group calling themselves “The Signers” wrote in the May 31 issue of National Review that
the ultimate answer to the illiberalism ascendant on college campuses and elsewhere and to the rampaging anti-Americanism of our elite culture will have to be found in the common sense and decency of the American people.
What the world needs, therefore, is more opinion-mongering: “In protecting and revitalizing America, there is no substitute for the hard work of public persuasion.” In this view, there is not a regime at all. There is just culture and opinion. The latter can be opposed; the former can be reformed or restored.
Bob’s experience suggests otherwise. At work, dissident opinions are literally proscribed. A permanent bureaucracy exists to promote conformity. Nor can Bob change jobs and find a more tolerant employer. Every large employer copies the others in its practices and policies. Bob could also move his children to different schools, but the diversity-equity-inclusion trinity has pervaded even the most conservative among them. When every nominally private institution ends up marching in lockstep with the others, that is a sign that civil society has been commandeered. As an ideology, socialism has inspired harmless utopian experiments, from Robert Owen’s New Harmony to the Israeli kibbutzim. As a system of state power, it has murdered and enslaved tens of millions. The ubiquity of woke ideology and the pervasive fear of challenging it suggest that it is more than a system of ideas. It is also a system of power.
Every large employer copies the others in its practices and policies.
Indeed, as Richard Hanania and others have lucidly explained, the woke regime is a creature of law. Its origins can perhaps be traced as far back as 1961, when President Kennedy (in the wake of Nixon’s report on federal contracting) issued an executive order mandating that all parties to a government contract agree to “take affirmative action” to end discrimination. Previously, the federal government had merely required contractors to avoid discriminating formally on the basis of race, color, creed, or national origin. With the 1961 executive order, to secure government contracts, affirmative action—i.e., active promotion of underrepresented groups—became mandatory.
Three years later, Congress passed the Civil Rights Act of 1964. Senator Hubert Humphrey notoriously promised at the time, “I will eat my hat if anyone can find language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion or national origin.” Humphrey’s statement is often cited as evidence that the original intent of the Civil Rights Act has been betrayed. In fact, all that Humphrey claimed was that the act would not lead to strict quotas or percentages. He did not deny that the Civil Rights Act would lead to race-conscious hiring. The presidential executive orders on federal contracting had already embraced affirmative action.
It took the Civil Rights Act much less time to do the same. In 1971, in Griggs v. Duke Power, the Supreme Court announced that an employer can be held liable for unlawful discrimination merely for adopting a practice—such as a test—that has a disparate impact on members of different races. The Court still permitted a disparate impact if an employer could prove the “business necessity” of a given practice. But meeting that burden is costly and uncertain. After Griggs, employers have all sought as a practical matter to achieve an approximate parity among protected groups in hiring and promotion outcomes. In other words, Griggs mandated diversity before “diversity” became a sacred value. The Civil Rights Act—which nominally prohibited discrimination on the basis of race, color, sex, religion, or national origin—was interpreted to require the opposite.
Griggs mandated diversity before “diversity” became a sacred value.
The standards of antidiscrimination law are inherently vague. It is unclear what rises to the level of “affirmative action” or what outcomes show a “disparate impact” or what constitutes “business necessity.” (Indeed, virtually any system of selecting candidates for hiring and promotion, whether it be based on IQ, sprinting speed, strength, or manual dexterity, is inevitably going to have a disparate impact. As a result, almost all hiring practices are illegal.) If the federal government had simply required some defined and time-limited reparations for descendants of black slaves and American Indians—the two groups who actually did suffer racial injustice—the result might have been unpopular, but it would not have had much day-to-day impact. Instead, to keep up with shifting standards and guidance, all large institutions maintain a bureaucracy to stay current with the evolving law and norms in diversity, equity, and inclusion. Employers also make vague pronouncements and adopt programs favoring diversity, all ultimately in an effort to bring themselves into compliance, create a favorable record, and minimize the potential for enforcement actions and lawsuits.
Finally, antidiscrimination law empowers grievance groups. Not every workplace dispute can activate an entire bureaucratic apparatus. But if a complaint relates to one’s status as a member of a protected class, an institution has no choice but to respond and take it seriously. Hence, the phenomenon of “crybullies”: individuals who not only complain of alleged harm but demand an institutional response to protect them. Not surprisingly, there is also an intense impetus for new grievance groups. The transgender contagion is partly caused by anxious children needing a way to get attention and assert their power. In today’s environment, a white child, by announcing a new gender identity, can leap from the bottom of the victimhood hierarchy to the apex.
In short, opponents of “illiberalism ascendant on college campuses and elsewhere” face not just an intellectual movement or a fad. They also face the exercise of political power. The power is peculiarly dispersed. It is not wielded by a dictator, a party, or a gang. It is instead the power of bureaucrats and cancel mobs. It operates not through the threat of violence—although the regime does prosecute its more incorrigible enemies—but through the threat of ostracism and being deprived of the means of making a living.
It is sometimes argued that antidiscrimination law is not a sufficient explanation for the ubiquity of the woke regime. If tomorrow a Republican president revoked the affirmative-action executive orders and a Republican Congress eliminated disparate-impact liability, would those who are inspired by and profit from the regime cease to control the academy, the schools, the media, and the corporations? Of course, we cannot know the answer to that. To assume a Republican Party bold enough to challenge the regime is perhaps also to assume that there exists a world in which the regime’s leaders can be humbled and its dissidents emboldened.
One thing that is certain is that a change in the law would end the law–culture coevolution that generates and empowers cancel mobs. Rather than stand up to its woke young employees, for example, the Disney corporation chose very publicly to oppose Florida’s Parental Rights in Education law, even though the law was popular among Disney’s own customers. In 2020, corporations did not dare refuse to contribute money to Black Lives Matter. Hundreds have lately filed briefs in support of racial discrimination in university admissions. These political interventions are not taken voluntarily—still less are they genuine examples of corporate free speech—but are themselves incentivized by the regime. Civil society may be irreparably damaged, but at least if private organizations are freed, there is a chance that some of them can be restored to health.
The Harvard affirmative-action case
Defeating the regime will require bold and skilled Republican politicians. (Those politicians will need to ignore the advice of many movement conservatives, who function in practice, if unconsciously, as controlled opposition.) Meanwhile, the Supreme Court has an opportunity to strike a prodigious blow. For decades, despite the guarantees of the equal-protection clause, universities have massively and self-consciously discriminated against whites and Asians in their admissions policies. Everyone knows it; nobody in good faith denies it. The plaintiffs in Students for Fair Admissions v. Harvard, the affirmative-action case now pending before the Supreme Court, exposed overwhelming evidence of favoritism towards blacks and Hispanics.
Meanwhile, the Supreme Court has an opportunity to strike a prodigious blow.
A variety of rationales for the practice have been advanced: remedying past discrimination; providing “role models” for minority students; countering social discrimination. But the only rationale that passes constitutional muster, according to the Supreme Court at least since Grutter v. Bollinger (2003), is the one that nobody actually believes in: a state-run university or a private university that, by accepting federal funds, must comply with the equal-protection clause, may discriminate on the basis of race in order or achieve the putative educational benefits of having a “critical mass” of racial minorities. The bizarre logic, which not even the defenders of affirmative action say they accept, is that racial discrimination is constitutional not because it benefits blacks and Hispanics (a cogent, if contestable reason) but because the presence of blacks and Hispanics benefits whites.
The Court’s approval of racial discrimination in selective university admissions has made compliance with disparate-impact law possible. By a quirk of doctrinal development, disparate-impact liability has never clearly applied to the practices of universities that accept federal funds. Hence, colleges have for decades used objective tests like the sat to select students. Once high-scoring candidates are selected, the universities, with the Supreme Court’s blessing, may then discriminate on the basis of race in order to achieve racial diversity in admissions. Then, after the students are graduated, employers can hire them, relatively confident (even if they do not consciously admit it) that graduates of elite schools have already been screened for intelligence.
Even better, thanks to racial discrimination in university admissions, employers can hire candidates of their preferred racial makeup based on where they went to college, without it having an unlawful disparate impact. Selective colleges and professional schools, in other words, effectively do the dirty work of intentional racial discrimination. Affirmative action operates in practice as a very expensive workaround for avoiding disparate-impact liability. No wonder large corporations all favor affirmative action: they need it in order to achieve their diversity targets. The losers are parents, who bear most of the costs of the system in the form of higher tuition, not to mention the time, money, and anxiety of grooming their children for niche activities (such as squash or oboe) that colleges still allow to be filled by white students.
The Supreme Court, like Joshua, can bring the entire system crashing down. The easy part is overturning Grutter’s holding that universities may discriminate in order to achieve racial diversity. The harder part will be to enforce its holding. In the words of segregationists in the wake of Brown v. Board of Education, there will be “massive resistance” to any attempt to prohibit racial discrimination. Harvard and its sister institutions will adopt virtually any subterfuge that would enable them to practice affirmative action without it being detected.
Selective colleges and professional schools effectively do the dirty work of intentional racial discrimination.
To prevent elite universities from covertly discriminating on the basis of race, the Supreme Court needs to arm plaintiffs with the weapons to prevail in future lawsuits. First, the Court can make clear that a university can comply with the equal-protection clause simply by not collecting statistics in any form (whether overtly or covertly) on the racial makeup of its applicants or student body. That will give universities the option of simply getting out of the racial-counting business altogether.
Second, the Court can hold that a university may comply with equal protection by refusing to consider any measures of aptitude or achievement, such as standardized tests or grades. In other words, the Court can give the universities the option of debauching their reputations for selectivity, much in the way that New York’s City College did in the 1960s. City College, which once graduated some of America’s foremost intellectuals, adopted open admissions in 1969 and essentially has not been heard from since in terms of cultural impact. (Potentially diminishing the power of the universities is an ancillary benefit of prohibiting affirmative action.)
Third, the Court can permit a university to remain selective. If a university does so, however, and also collects information on race, the Court should give the university only two options. First, it can admit students solely based on objective criteria such as test scores and grades. In other words, all selective universities would become versions of Caltech as late as 2018, which did not practice affirmative action at all.
Or, if a university insists on remaining selective, collecting statistics on race, and practicing some form of “holistic” admissions, the Court must make it impossible to camouflage racially discriminatory practices. To prevail, a university must have to specify publicly which categories it wishes to fill (basketball players, for example, or flautists, or children of billionaire donors) and in what numbers. Any significant deviation from the distribution of objective scores in the applicant pool for any particular slots, versus the scores of the candidates accepted, should then be considered prima facie evidence of unconstitutional racial discrimination. The university can rebut the plaintiff’s case only by producing compelling evidence that the factors considered in holistic admissions happen to skew on racial lines. For example, if one factor is “grit and overcoming adversity” and it produces an outcome that skews in favor of one race, the university can only prevail if it can prove that candidates of that particular race actually do happen to have more grit.
With affirmative action eradicated, the Court will have established a precedent that the government may not adopt practices that are designed to achieve diversity. From there, it is but a small step to hold that the government also may not compel private employers to achieve diversity. The next case can then, on the basis of that precedent, challenge the constitutionality of disparate impact and the president’s executive orders on affirmative action. The entire diversity-equity-inclusion regime, in short, could fall. The regime’s apologists know it. That is why the affirmative-action cases matter more than almost any case since Brown.
