Notes & Comments October 2022
Adjudicating the racial racket
Introducing “Affirmative action and the law: a symposium.”
In the eyes of government, we are just one race here. It is American.
—Justice Antonin Scalia, Adarand Constructors, Inc. v. Pena
All animals are equal, but some animals are more equal than others.
—George Orwell, Animal Farm
A large part of this issue of The New Criterion is devoted to discussion of some important legal cases for which the Supreme Court is scheduled to hear arguments this month. One (Merrill v. Milligan) concerns objections raised by the state of Alabama to an effort to change the long-standing configuration of its seven congressional voting districts. Another (involving Harvard and the University of North Carolina) concerns the use of “affirmative action” in college admissions policy to achieve a certain predetermined racial mix.
It may seem odd that The New Criterion should wade into these sometimes complex waters. After all, what do such recondite legal disputes have to do with the pulse of cultural life? Quite a lot, as it happens. For one thing, these cases are seriously implicated in the “diversity industry” that, over the last few decades, has installed itself ever more deeply into the tissues of academic and, more recently, corporate life in America. In his book Coercing Virtue: The Worldwide Rule of Judges (2003), the gimlet-eyed judge and commentator Robert Bork noted that in “discussions of cultural warfare, law is usually overlooked.” The focus is more often on schools and universities and on the state of the family, the churches, the media, and popular culture. The omission of law, said Bork, is unfortunate because “Law is a key element of every nation’s culture, particularly as we turn more to litigation than to moral consensus as the means of determining social control.” Judge Bork was right about this, as the cases under review in this issue show. The essays that follow speak for themselves, but let us begin by offering a brief road map, followed by a few general remarks.
The first essay, by Frank Resartus, dramatizes the cultural connection Robert Bork mentions. The advent of so-called dei initiatives (that’s short for “diversity, equity, inclusion”) in our society is partly a coefficient of the affirmative-action culture that defines and enforces it. Resartus notes that “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.” This is true. He shows how pervasive this ideology is in corporate as well as pedagogical life and exposes the main legal current feeding the pathology: the hypertrophy and weaponization of the equal-protection clause of the Fourteenth Amendment in order to pursue a “progressive” political program of racial and sexual redress.
One phrase that recurs in several of these essays is “massive resistance.” That was the term that some Southerners used to describe their strategy of refusal following the decision in Brown v. Board of Education (1954) to desegregate public schools. Some of those efforts certainly had the virtue of creativity. Since it would henceforth be illegal for public schools to be segregated, some districts simply shuttered their schools and funneled money to private ones. Should the affirmative-action cases now before the Supreme Court go against the entrenched practice of using race as a criterion for admissions, we can expect to see similar expedients deployed.
As the law professor Gail Heriot notes in her essay, even if the Supreme Court comes down squarely against using race as a criterion for college admission, we should not expect college administrators to throw up their hands and capitulate.“Many university officials,” she writes, “consider their support for discriminatory standards to be a sacred duty.”
It would be naive to expect them to stop simply because the Supreme Court finally gets around to recognizing that this kind of race discrimination is illegal. They will either continue exactly as before or switch to an admissions policy that is facially race-neutral but in fact intricately engineered to produce their desired racial result.
Indeed, the history of affirmative action is a history of great ingenuity expended to evade the announced purpose of the practice: fostering equality. Time and again, the rhetoric of equality is deployed as a smokescreen to pursue ends that are patently inequitable. In the beginning affirmative action was undertaken in the name of equality. But, as always seems to happen, it soon fell prey to the Orwellian logic by which the principle that “All animals are equal” gives birth to the transformative if contradictory codicil: “but some animals are more equal than others.”
Affirmative action is Orwellian in a linguistic sense, too, since what announces itself as an initiative to promote equality winds up enforcing discrimination precisely on the grounds that it was meant to overcome. Thus we are treated to the delicious, though alarming, contradiction of college applications that declare their commitment to evaluate candidates “without regard to race, gender, religion, ethnicity, or national origin” on page 1 and then helpfully inform you on page 2 that it is to your advantage to mention if you belong to any of the following designated victim groups.
The whole history of affirmative action is instinct with that irony. The original effort to redress legitimate grievances—grievances embodied, for instance, in the discriminatory practices of Jim Crow—has mutated into new forms of discrimination. In 1940, Franklin Roosevelt established the Fair Employment Practices Committee because blacks were openly barred from wartime factory jobs.
But what began as John F. Kennedy’s executive order in 1961 directing government contractors to take “affirmative action” to assure that people be hired “without regard” for sex, race, creed, color, etc., has resulted in the creation of vast bureaucracies dedicated to discovering, hiring, and advancing people chiefly on the basis of those qualities. White is black, freedom is slavery, “without regard” comes to mean “with regard for little else.”
Moreover, it is worth stressing, the inequities are double-sided. Not only are blacks and Hispanics given preferential treatment, but also whites and (especially) Americans of Asian descent are actively discriminated against. Just one example: at Harvard, as John Yoo and Wen Fa show in their essay below, “Asian American applicants have lower acceptance rates than white students at nearly every academic decile. An Asian American applicant in the fourth-lowest decile has less than a 1 percent chance of being admitted. But an African American applicant in the fourth-lowest decile has a 12.8 percent chance of being admitted.” Why? Because they are Asian American. There is no other reason. In this respect Asians are the new Jews, excluded on account of their ethnicity and subject to unofficial quotas wherever official quotas are banned.
Yoo and Fa show that a similar reality has installed itself in elite high schools. The Thomas Jefferson High School for Science and Technology in Alexandria, Virginia, is widely regarded as one of the very best high schools for science and engineering in the country. Although the school was already ethnically diverse, with students from more than thirty different countries, the Fairfax County school board decided that it was not diverse enough, or not in the right direction. So in 2020, the school changed its admissions policy so that Asian American enrollment plummeted from 73 to 54 percent.
In some ways, our situation is a cautionary tale about the dangers of ingenious legal hermeneutics fueled by progressive sentimentality and expansionist government bureaucracy (is there any other kind?). After all, the Leviathan of affirmative action and what James Piereson calls the “racial spoils system” and the diversity conglomerate it supports have emerged from a small cluster of legal imperatives. The Fourteenth and Fifteenth Amendments to the Constitution provide for “due process” and “equal protection” and stipulate that one is equal under the law and entitled to vote regardless of one’s skin color. The Civil Rights and Voting Rights Acts from the 1960s are essentially glosses or restatements or extensions of those amendments. The road from those noble and straightforward desiderata—don’t discriminate against people because of their race or national origin—to such monstrosities as the smorgasbord of “Minority-Serving Institutions” programs is clear and direct. The largest of these, the Hispanic-Serving Institutions program, is annually the recipient of hundreds of millions of dollars in federal, i.e., taxpayer, subsidies. To be eligible, an institution just needs to show that its student body is at least 25 percent Hispanic. As Heriot comments, “This is patently unconstitutional”—imagine if someone proposed a similar program for Anglo-Saxons!—“and should therefore be repealed. Federal money is being doled out to colleges and universities based on the race or ethnicity of their students.”
Sometimes, the logic of the procedural legerdemain is (to use Frank Resartus’s term) simply “bizarre.” You are not allowed to discriminate on the basis of race if you say you are doing so to achieve a certain racial quota. But you are if you say you are doing so to achieve a “critical mass” of minority students for the benefit of the student body at large. That is, “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.” Such is the fog dispensed by the mantra of “diversity.”
The covert, or semi-covert, political agenda is only too obvious. Blacks vote overwhelmingly—more than 90 percent of them—for Democrats. Hence the effort to gerrymander on the basis of race is simply to use the imperatives of the Voting Rights Act as a cover for creating Democrat-controlled fiefdoms. As Piereson notes in his analysis of the Alabama redistricting case, the Voting Rights Act often operates “less as an instrument to protect minority voting rights and more as a shield to advance the interests of the Democratic Party or to protect incumbents of both parties.”
A critical aspect of the culture of affirmative action and the climate of pseudo-diversity it supports is the habit of giving priority to supposed “group rights” over individual rights. But treating people simply as interchangeable tokens on the basis of their race, ethnic origins, or sex is completely contrary to the spirit of the Constitution and the statutes derived from it. It is also deeply unpopular. Behind this dynamic, as Glenn Harlan Reynolds shows, is a weighty question about the nature of the American polity. The United States is supposed to be a representative democracy. Is it? Or is it an oligarchy masquerading as such? The “diversity-industry” cases discussed below will be decided next June. How they are resolved will go a long way in answering such questions and, as Reynolds puts it, the question of “how free our ruling class should be to make rules for itself different from the rules it applies to the lesser orders.”
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This article originally appeared in The New Criterion, Volume 41 Number 2, on page 1
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