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.

We live, allegedly, in a democracy of sorts. While it is not a plebiscitary democracy, in which every issue is put directly to the people, but rather a representative democracy, it is nonetheless supposed to be a system in which things that the populace wants generally get done, and in which things that the populace doesn’t want done aren’t. It has probably not escaped your notice that this is not a particularly accurate description of our society today.

In fact, one of the most striking things today is the extent to which things that are popular with the political class, but unpopular with the mass of voters, somehow become national priorities nonetheless. By large margins voters in America (and pretty much every other country) are opposed to mass immigration; elites, on the other hand, are very much in favor. Likewise, affirmative action, whether in employment, judicial appointments, or college admissions, is very unpopular, and yet it is the norm today, though sometimes thinly disguised. And, of course, the trans-rights movement, thanks to which female athletes have to compete against biological males, has been very much a top-down phenomenon, not one that arose because the masses demanded it.

Well, the masses are not always right, though I would have thought that the point of our system of government was to ensure, within constitutional limits, that they generally get what they want and are spared things they dislike. As noted, that’s not the case. But why?

In short, the source is what’s known as a principal/agent problem. In a representative democracy, governing isn’t done by the people, who in our system are the principals, but rather by their agents: presidents, members of Congress, judges, and, of course, the vast unelected bureaucracy. But these agents tend to do what they want, rather than what their principals desire.

These agents tend to do what they want, rather than what their principals desire.

In the field of corporate finance, this is known as the separation of ownership from control. In a sole proprietorship, the owner also controls the business. In a corporation, not so much. Shareholders own the company, but management effectively controls it. Management is supposed to act entirely and exclusively for shareholders’ benefit, not its own, but in practice managers are often more concerned with their own welfare than with increasing shareholder wealth. In theory, the board of directors, elected by shareholders, ensures that management does what it is supposed to do. In actuality, boards are more likely to be an arm of management than a fierce protector of shareholders. So you get fat salaries and limited consequences for failure, along with freedom for management to subordinate profit to posturing that gains managers social points in their own milieu.

In the political system, courts play something of the role of the board of directors. The Constitution and various statutes, deriving their authority from the people or “shareholders,” lay out the rules. Courts are supposed to ensure that the political branches operate the government in a manner consistent with those rules, for the benefit of the citizenry. As the framer (and Supreme Court justice) James Iredell said, the federal government operates under “a great power of attorney” (the Constitution) in which no power can be exercised except as clearly granted. And, as with any power of attorney, the question of what powers were granted is ultimately one for the courts.

Oddly, when courts perform this function and order the political branches to act consistently with the Constitution, we are sometimes told they are acting anti-democratically. In fact, there is a large body of scholarship, by such august figures as Alexander Bickel and Robert Bork, regarding the “countermajoritarian difficulty” or the “Madisonian dilemma” that is allegedly raised when this happens. Yet since the (legitimate) power wielded by government is, under our system, only what power the people have delegated thereto, courts are simply doing their job when they rule on whether a particular government action, however much desired by the governing class, is properly authorized or violates the Constitution.

Which brings us to the Supreme Court’s upcoming decision on affirmative action at Harvard. Affirmative action (now passing under the label of “diversity, equity, and inclusion,” or dei), the practice of selecting candidates in order to achieve particular proportions of race and gender, is highly unattractive to the American public and always has been. As higher education is increasingly seen, rightly or wrongly, as key to middle- and especially upper-middle-class status, affirmative action in academic admissions has become particularly unpopular. According to a recent poll by the Pew Research Center, 73 percent of Americans oppose the use of race or ethnicity as a factor in making college admissions decisions. Only 7 percent say race should be a major factor in making such decisions; 19 percent are okay with race being a “minor factor.” All racial groups oppose using race as a factor by majority numbers: 78 percent of whites, 65 percent of Hispanics, 62 percent of blacks, and 58 percent of Asians.

Even in mostly or completely blue states like California, voters have consistently opposed affirmative action in hiring or admissions. In 1996, Californians even passed Proposition 209, which banned the state government from discriminating “on the basis of race, sex, color, ethnicity or national origin.” In 2020, activists organized a huge campaign to repeal it. Despite their outspending opponents by a factor of nearly twenty, the effort failed overwhelmingly: Californians rejected the repeal by a fourteen-point margin—even as 64 percent of them voted for Joe Biden.

Voters notwithstanding, the University of California has pretty much openly violated the law in this regard anyway. As Michael Barone writes:

[California] voters rejected Democratic politicians’ and corporate elites’ determination to replicate statewide ethnic proportions in the student body of each state college and university.

What I find most striking is that Proposition 16 was rejected by a wider margin, 57 percent to 43 percent, than the margin by which Proposition 209 was adopted twenty-four years ago, 55 percent to 45 percent. During the interim, California has become strikingly more ethnically diverse and culturally liberal, and more Democratic. Bill Clinton carried California by 13 points, Joe Biden by 30.

There’s a vivid contrast here with the way California led the nation toward one major change of opinion—on same-sex marriage. California voters rejected same-sex marriage in 2008, but only by 52 percent to 48 percent, at a time when it was backed by (according to Gallup) only 40 percent nationally and resolutely opposed by Barack Obama and Hillary Clinton.

California was thus ahead of the nation on an issue that zoomed from 27 percent support in 1996 to 67 percent in 2020. But in that same twenty-four-year period, opposition to racial quotas and preferences, which are, by definition, racial discrimination, has actually risen in California, in Los Angeles County and Southern California, in the Central Valley and the Sierras, even in the San Francisco Bay area. Americans embrace the Civil Rights Act of 1964 now more than ever.

But despite voter sentiment, educational institutions aren’t cooperating. “Diversity” guidelines that are effectively quotas are ubiquitous. And the U.S. Supreme Court has made it easy to do. The message sent in two 2003 cases, Gratz v. Bollinger and Grutter v. Bollinger, both concerning the University of Michigan, was that it’s okay to fudge your admissions along racial lines if you’re careful not to be transparent about it.

Gratz involved the University of Michigan’s undergraduate admissions; Grutter involved the admissions process at the University of Michigan Law School. The practices challenged in Gratz were struck down. The practices challenged in Grutter were upheld. The difference? Honesty, or the lack thereof.

The undergraduate admissions process challenged in Gratz was pretty mechanical. Students were assessed according to a “selection index” based on high-school grade-point averages, admissions test scores, personal essays, etc., and scored out of a total of a hundred fifty possible points, with a hundred points guaranteeing admission. Michigan’s diversity policy granted applicants from “underrepresented” racial or ethnic groups a twenty-point bonus; the effect was virtually to guarantee admission to any minimally qualified member of favored racial groups. This, the Court said, was not permitted:

We find that the University’s policy, which automatically distributes twenty points, or one-fifth of the points needed to guarantee admission, to every single “underrepresented minority” applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program. . . .

Justice Powell’s opinion in Bakke [1978] emphasized the importance of considering each particular applicant as an individual [and] did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity.

The current lsa policy does not provide such individualized consideration. [It] automatically distributes twenty points to every single applicant from an “underrepresented minority” group, as defined by the University . . . . The lsa’s automatic distribution of twenty points has the effect of making “the factor of race . . . decisive” for virtually every minimally qualified underrepresented minority applicant.

The Court found that this mechanical boost based on race violated both the equal-protection clause of the Fourteenth Amendment and federal civil-rights laws.

The University of Michigan Law School’s admissions program, which also boosted minority acceptance rates, fared better. That’s because it was less transparent. Instead of assigning a flat twenty-point bonus, it merely weighed “soft variables” in a fashion designed to ensure that more minority applicants were admitted than would be otherwise. Rather than a quantifiable bonus, Michigan Law merely used race as an unquantified “plus factor.” This wasn’t a quota, said the Court, because there was no fixed number or proportion involved. Though the majority acknowledged that “there are serious problems of justice connected with the idea of preference itself,” it found that the law school’s “highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment,” passed the narrow tailoring test. “Unlike the program at issue in Gratz v. Bollinger, the Law School awards no mechanical, predetermined diversity ‘bonuses’ based on race or ethnicity.”

The majority opinion did express some hope that this practice of fudging might have a limited life span, though:

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula,” and will terminate its race-conscious admissions program as soon as practicable. It has been twenty-five years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

Well, it hasn’t been twenty-five years since the Grutter opinion, but it’s been almost twenty. And in that time, college “diversity”programs have gone beyond discriminating against the majority in favor of minorities. Now they’re also working overtime to keep out minorities who are seen as the wrong kind: Asians.

It isn’t the first time this sort of thing has happened. In the 1920s, Ivy League institutions engaged in startlingly similar conduct to keep out Jews, a minority seen as undesirable. These recent immigrants, from a culture that prized education and academic achievement, had an unfortunate characteristic: they worked harder, studied longer, cared more about school. In short, they had all the attributes required for academic success in the Ivy League.

It isn’t the first time this sort of thing has happened.

Problem was, the Ivy League didn’t really want them. Being first-generation students, these applicants didn’t have rich alumni parents who would be likely to donate big bucks. Belonging to an ethnicity not associated with America’s governing class, they didn’t help the Ivy League with its biggest selling point: providing an opportunity to rub shoulders with that governing class. And they were seen as boring grinds who studied too hard and weren’t much fun.

The results were a change in admissions criteria to reward “leadership” and “well-rounded” candidates—a thin disguise for “wasps”—and, following closely on, actual quotas for Jewish students, so that no matter how many applied, their numbers on campus would stay just about the same. After several decades, this practice came to be seen as racist and unfair, and the quotas were dropped. (Though by then, conveniently enough, the Ivy League was able to find Jewish applicants with plenty of money, polish, and governing-class connections without too much trouble.)

Now it’s Asians getting the same treatment. They are seen as boring grinds who study too hard and aren’t much fun—and, of course, their parents aren’t as rich and connected. And though the number of highly qualified Asian applicants has grown dramatically in recent years, the number of Asians admitted stays pretty much the same every year.

Now the Asian students are suing. In a lawsuit against Harvard, they are claiming that Harvard demands higher qualifications from Asian students than from others, and that it uses “racial classifications to engage in the same brand of invidious discrimination against Asian Americans that it formerly used to limit the number of Jewish students in its student body.”

These claims are almost certainly correct. Discrimination against Asian students—and not just by Harvard, but throughout higher education and especially in the Ivy League—has been an open secret for years. Asian students face a “bamboo ceiling” as a result.

Asian students face a “bamboo ceiling” as a result.

Where today’s discrimination is different from the Ivy League’s old quotas capping the number of Jews is that those old quotas were removed as part of efforts to fight racism. The Ivy League’s new quotas, meanwhile, are often defended on the same grounds—or, at least, as a means of attaining “diversity.” The other difference is that, now, federal civil-rights laws apply to private entities, like Harvard, that discriminate on the basis of race.

The Asian students suing Harvard got unsympathetic hearings in the district court and in the court of appeals. There is reason to think that they may be treated more favorably in the U.S. Supreme Court.

If they are, we will hear that the Supreme Court is acting undemocratically, because it is an unelected branch. But enforcing constitutional and democratic accountability on the part of the political branches—and especially the bureaucracy—is not undemocratic at all. (Neither is seeing that civil-rights laws are applied even to upper-crust institutions like Harvard.) Rather, it is an important tool for ensuring that the populace’s expressed desires are actually brought into effect. Though some degree of separation of ownership and control may be inevitable, a judiciary that is more willing to do its job than the judiciary has been in recent decades can narrow that gap considerably.

In the corporate-finance world, a less liberal interpretation of the “business judgment rule,” by which courts overlook management decisions that seem contrary to shareholder interests, and a stricter application by management of its fiduciary duty can reduce the separation. In the government field, there are some similar changes that courts should make.

Courts should abolish or sharply limit governmental immunity rules.

At the individual level, courts should abolish or sharply limit governmental immunity rules. Right now government officials benefit from qualified “good faith” immunity, in which they can’t be sued unless their conduct violates a “clearly established” rule of law. (Citizens, on the other hand, get no such benefit of the doubt). And some officials, like prosecutors and judges, get the benefit of absolute immunity, meaning that they simply can’t be sued at all.

There is no basis for this immunity in the Constitution; it’s simply a doctrine made up out of whole judicial cloth because courts don’t want to hear these kinds of suits. But eliminating it would place both elected and unelected officials under considerably more pressure to follow the Constitution and the law.

At the institutional level, courts should also resume enforcement of some moribund doctrines designed to keep government officials accountable. The non-delegation doctrine says that officials and agencies can’t exercise legislative power unless explicitly delegated by Congress. That is interpreted today in a way that makes it almost meaningless: Congress need merely provide an “intelligible principle,” which in practice can be pablum of the “make workplaces safer” or “make the world better” variety. The current situation means that Congress needn’t take responsibility for what agencies do and can even blame bureaucrats when things go wrong. Bureaucrats, meanwhile, get a largely free hand to do as they will.

So what does this have to do with Harvard and affirmative action? More than you might think. It’s true that Harvard is not a government entity. But in practice, it’s deeply entangled with the government. The entire structure of dei exists in the shadow of various federal policies—including an unofficial policy, under this administration, of not investigating when universities do things that look like racial discrimination, so long as it’s the right kind of racial discrimination. And Harvard—like lesser educational institutions such as Bob Jones University, which lost its tax-exempt status in the 1970s because it didn’t allow interracial dating—remains subject to the federal civil-rights laws that ban racial discrimination, even though Harvard’s management seems to regard such legal issues as beneath its attention. The Supreme Court held that even sincere religious beliefs did not exempt Bob Jones University from the requirements of federal civil-rights laws. Racial discrimination, it held, violates a “fundamental national public policy.”

We’re talking about Harvard, after all.

Harvard would like us to believe that racial discrimination by the deplorable likes of Bob Jones University violates fundamental national public policy, but racial discrimination by Harvard is an important educational goal that should trump any mundane legal concerns. We’re talking about Harvard, after all. And the kind of racial discrimination that Harvard is engaging in, denominated as essential to diversity, equity, and inclusion, is the kind of racial discrimination that our governing class favors and values. (In truth, the upper-class commitment to dei is probably as religiously felt as was Bob Jones University’s opposition to interracial dating.)

So the question for the Court concerns how free our ruling class should be to make rules for itself different from the rules it applies to the lesser orders. Governor George “Segregation Forever” Wallace, the Atlanta restaurant owner (and later the Georgia governor) Lester Maddox, and for that matter Bob Jones University no doubt sincerely believed that the segregationist racial policies that they supported were essential to the good of society. (Ironically, as today’s “diversity” policies increasingly favor race-specific and even race-separating methods, the differences between the two approaches seem to be vanishing.) But their sincere belief in the application of racial discrimination toward a social end that they desired did not exempt them from submitting to the Constitution and the laws of the United States.

The question for the Supreme Court, as these cases come up for argument this year, will be whether the law applies to Harvard with the same force.

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This article originally appeared in The New Criterion, Volume 41 Number 2, on page 30
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