THE DEATH OF AFFIRMATIVE ACTION:

Will Racism Continue?

In case you were preparing for the July 4^th holiday weekend, were stuck in an airport and the TVs were broken, or were thankfully enjoying the summer by avoiding any news, the Supreme Court struck down the affirmative action practices of Harvard University and the University of North Carolina in Students for Fair Admissions v. Harvard and University of North Carolina.

While this was not unanticipated, it still stoked “shock”, “rage” and “disbelief” from the woke classes who believed it to be their unabated right to discriminate against Asian in favor of black and brown, and potentially self-identifying LGBTQIA+ members, to their hearts’ content without being answerable to anyone much less the U.S. Constitution or Title VI, or do I exaggerate?  Well maybe a little.

No, seriously, the left lost its collective mind with calls for impeachment of Supreme Court justices, packing the Court, and claims that the Court was illegitimate. The President was asked by the press if this was a “rogue” court.  While Biden did not fall for that, he did opine that the Court was not “normal.”

To summarize the “rogue extreme views” of the six “far right-wing conservatives” who formed the majority of the Court--- “you can’t discriminate against people because of their race”. That took 139 pages.  The three justices in the minority passionately retorted that “oh yes, you can”.  That took 98 pages.

I must advise that this column is not for the faint of heart or those who are only marginally interested.  It’s long. This recent decision was not issued in a political or historical vacuum.  As those of you who have read these columns know, I try to get into how we got to this place in history and for this issue, we have been fighting over it for a very long time.

Our Founding:  Thomas Jefferson articulated the principle that “all men are created equal” in the Declaration of Independence.  While this principle has not been challenged openly, we have struggled with its implementation.

Hey I admit it.  The principle that “all men are created equal” was not fully implemented as a result of the Declaration of Independence or the Constitution which continued the practice of slavery.  If we are honest with ourselves, not everyone then or now agree that all men are created equal under the law or should be.  “In order to form a more perfect Union…” as our founding fathers did in the first sentence of the Constitution, they had to cut a deal.  A part of that deal required a compromise on slavery and that left its resolution for another day.

The failure to settle the slavery/race issue once and for all burdened the country from its founding through 1865.  It expressed itself primarily over the issue of expanding or limiting slavery in new states and territories.  While many believed that slavery was a failed economic structure and would eventually fall of its own weight given time, the passage of the Missouri Compromise, the Fugitive Slave Act of 1850 and the Kansas-Nebraska Act of 1854 fired up both sides.  Added to the mix was the Dred Scott decision, which ruled that blacks were property and not people. The mood of the country went from disturbed to angry to ready for war.  That little skirmish to end slavery cost the lives of around 620,000 Americans.

Out of the Civil War came the 13^th Amendment banning slavery.   However, as soon as the 13^th Amendment was ratified, southern states which were conquered territories occupied by Northern troops began to enact “black codes” to segregate the races. To respond to this, Congress passed the 14^th Amendment providing for equal protection for all under the law along with a series of civil rights acts to implement them.

The Jim Crow years, we regress:  Despite the early recognition of the broad sweep of the Equal Protection Clause, the country failed to live up to the promises of the 14^th Amendment. In 1876, the North, tiring of occupying the South and to resolve the controversial 1876 Presidential election, withdrew its troops and the age of Jim Crow was established.  The Supreme Court didn’t help when it codified the segregation of the races in the 1896 decision, Plessey v. Fergusson, which ruled that state mandated racial segregation was not a violation of the Constitution as long as those separate facilities were equal.

In 1913, Woodrow Wilson allowed the resegregation of much of the federal government and in the 1920s, America saw the rise of the Ku Klux Klan in the North as well as the South.  Any resolution of civil rights issues was delayed further by the Great Depression and then WWII.

Civil Rights Revival:  In Korematsu v. U.S., in a little remembered case except for your humble correspondent and thousands of Japanese who were removed from their homes on the west coast to the American interior, Korematsu was arrested and convicted for violating Roosevelt’s Executive Order that authorized the Japanese removal from the west coast during WWII.

The Court started by noting that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect”, i.e. wrong. However, in order to uphold the conviction of Korematsu (after all, there was a war on), the Court left a window open for future discrimination concluding “that is not to say that all such restrictions (on race) are unconstitutional”.  To accentuate the point that these exceptions should be rare, the Court instructed lower courts that they must subject racist laws to the most rigid scrutiny. (i.e. don’t just rubber stamp these racist laws, look at them really hard and be suspicious) “Pressing public necessity” (like there is a war going on) “may sometimes justify the existence of such restrictions; racial antagonism never can.”  In dissent, Justice Murphy saw through the whole linguistic jungle gym and used the term racism for the first time in a Supreme Court decision.

After World War II, during an era of peace and prosperity in the 1950s, the Court decided Brown v. Board of Education overturning government sanctioned school segregation.  It overruled the pro segregation separate but equal doctrine of Plessy v. Ferguson. stating that laws mandating segregation by race can never be “equal” under the Constitution.

In the wake of Brown, all kinds of laws that were not race neutral fell either voluntarily or through court action, i.e. bans on interracial marriage, segregation of public beaches and bathrooms, segregation of parks and golf courses, neighborhoods, buses, trains, schools and juries.

Foreshadowing the Students for Fair Admissions v. Harvard case, Brown stated that no state has any authority under the Equal Protection Clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

But just because the Supreme Court expresses a principle, doesn’t mean that it will be adopted by all of the people.  While Brown continued the principle that “all men are created equal under the law”, it also continued the tiny exception for race-based laws which was to be used in only in very limited cases.  That exception to a color-blind society could only happen, in the Court’s view, when the government had a “compelling state interest” and even then, the policy had to be one that least affected the race which was being discriminated against.

The struggle for civil rights continued in the 1950s with the forced integration of schools in the south, lunch counter sit-ins and other protests culminating with the March on Washington in 1963 and Martin Luther King’s “I Have a Dream” speech.  The next year, the Civil Rights Act of 1964 was passed reflecting the gathering consensus of Americans that discrimination on the basis of race was just plain wrong, that there should be equal opportunity for all, and we should move forward as a color-blind nation. 

Problem solved.  Well, no.

Affirmative Action, we regress…again: But back to school.  In Regents of University of California v. Bakke, (1978). Alan Bakke challenged a program which denied him admission to the University of California-Davis medical school because he was white.  UC-Davis had set up a program that out of 100 positions, 16 were reserved exclusively for minority groups.

In the decision, four justices upheld the color-blind principle and determined that the program establishing numerical quotas for positions on the basis of race for which one race was banned absolutely was racist, illegal, and there was no way to save it. 

On the other hand, four other justices ignored the color blind principle expressed in Brown that the government has no authority under the Equal Protection Clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens, thinking it was ok to discriminate since the policy was to remedy purported present effects of past societal discrimination.  This was the view that folks who had not been discriminated against could be granted positions over folks who had never discriminated against anybody because of what had happened to other folks in the past for which neither group had any responsibility.

Then there was Justice Lewis Powell who all by his lonesome agreed with the first four justices that the program of quotas was unconstitutional since 16 slots were reserved solely on the basis of race BUT… in a new theory decided that the school may have a compelling governmental interest to justify discrimination by providing “an educational benefit from a racially diverse student body”.  The four justices who weren’t on board with a color-blind society adopted Powell’s “compromise” thinking that some racism is better than nothing, and the age of Affirmative Action began.

Lost in the discussion was how the amount of melanin in a medical student’s skin was related to cutting you open to take out your appendix, but I digress.

So now, a school could use race as a factor when deciding on student admissions…but only a tiny factor, and it had to promise that it wouldn’t use this exception to effectuate quotas for the racial makeup of a student body.  But race-based admission standards were off to the races (no pun intended) as school officials pretended that their racial decisions were just “goals” not “quotas” to create a “diverse student body” with multi-color skin tones. This philosophy extended to other areas as well with the advent of minority set aside programs for contracts and affirmative action in employment.

Thus began our current age of Affirmative Action, and a regression to the days of Jim Crow and “separate but equal” although this time with different races and ethnic groups on top.

Discrimination cases continued to arise as college administrators increasingly emphasized a diverse racial student body over student admissions based on merit which had been measured primarily by grades and test scores. Courts and college administrators although continuing the line that race would only be a plus factor among equal candidates moved from considering race as a factor in a hypothetical case of equally qualified candidates to results oriented quota systems designed to keep minority admissions to a predetermined fixed number.

In 2003, Gratz v Bollinger and Grutter v Bollinger made it to the Supreme Court. In Gratz, the Supreme Court in a 5-4 decision struck down the University of Michigan practice of awarding minority undergraduate applicants extra points for admission.  Sandra Day O’Connor joined the majority. 

However, in Grutter, decided on the same day, O’Connor switched sides to create a different 5-4 majority to affirm a Michigan Law School policy that allowed admissions officials to look beyond grades and scores to so-called soft variables including personal statements, letters of recommendation, and essays describing how applicants would contribute to Law School life and diversity.

As a hint to its ultimate goal of accomplishing a certain level of admissions based on race and ethnicity, the policy reaffirmed the Law School's commitment to diversity with special reference to the inclusion of African-American, Hispanic, and Native-American students, “who otherwise might not be represented in the student body in meaningful numbers”.

The four judges in the minority weren’t buying the rationale, viewing the program’s word salad of justifications as a cover for racial discrimination to assure a particular numerical racial makeup of University of Michigan Law School classes.  I don’t think that O’Connor who wrote the majority decision and was the swing vote in the case was buying it either.   Nevertheless, O’Connor stated she was convinced that this type of discrimination was necessary, but for the first time, stated that these types of soft racially discriminatory programs had to have a limited life.  Famously, she stated that these programs should not be necessary after another 25 years which would have made it 50 years after the original Bakke decision establishing Affirmative Action.

The Supreme Court tires of the Affirmative Action game: Then at long last comes the subject of this column, Students for Fair Admission vs. Harvard.  It appears that Harvard got sloppy or arrogant or both as its goal of increasing Black and Hispanic students became so overwhelming that it created a system that massively disadvantaged another ethnic group, Asians.

The “goal,” according to Harvard’s director of admissions, “is to make sure that [Harvard does] not hav[e] a dramatic drop-off” in minority admissions from the prior class” which clearly implied that it was admitting its classes based on its own internal racial and ethnic quotas.

The facts showed that over a 10-year period, the percentage of Black admittees stayed within a 2% band regardless of the qualifications of the applicant groups, and the only way to accomplish that result was to treat Black and Asian applicants differently.  Asian applicants had to get standardized test scores 300 points higher than Black applicants in order to be admitted at the same rate. In the 8^th decile of academic rankings, 44.5% of Blacks were admitted while Asians with the same academic standings were admitted only 7.5% of the time.  To jigger the point system, Blacks were given much higher scores on the “personal rating system” with Asians scoring consistently worse on subjective qualifications such as “exhibiting leadership”, “self-confidence”, “likeability”, or “kindness.”  In other words, Harvard manipulated the rank scoring on its soft factors to accomplish the numerical racial results that it wanted. 

The Supreme Court justices, well, at least six of them had had enough.  They weren’t going to pretend anymore that Affirmative Action was anything other than unconstitutional discrimination on the basis of race and ruled that considerations of race and ethnicity must end, no exceptions.

So after 69 years, the Court finally implemented the principle that was laid down in Brown v. Board of Education that there is no authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

So, are we done?  Have we, as a society, finally come to the conclusion that racial and ethnic classifications are not only illegal but wrong?

Probably not.

The Future: Racist thinking and stereotyping, as well as desires to remedy past wrongs, social justice, and get revenge, all die hard.

After the ruling was issued and the public outrage from the left and the educational elites (or do I repeat myself) subsided, college diversity administrators began working on methods to continue to discriminate against various groups in order to assure diverse student bodies.

Even in the majority opinion of the Court banning Affirmative Action, Justice Roberts, who wrote the decision, gave college administrators a hint as to how to discriminate in the future by suggesting that perhaps administrators could consider students of color if they wrote an essay describing how they had overcome adversity because they were students of color and consider “their overcoming adversity” instead of race. Now I guess we will be seeing a whole lot more student essays by students of color with stories as to how they overcame the adversities of their race.  One college has even tweaked its essay prompts for the 2024 college admissions season suggesting this as an essay topic.  Wink. wink.

The other strategy that college administrators will use is not to get caught.  Harvard lost because of the vast unexplained disparities between Black students and Asian students who took the SATs.  The answer…. Just don’t require the SAT anymore.  Harvard as well as 1,842 other universities no longer require SATs.  More schools will follow suit. 

Recently Erwin Chemerinsky, Berkley Law School Dean, in a tape-recorded lecture discussing the Supreme Court decision in a moment of candor (he didn’t know he was being videotaped), advised his law school class that he is very careful “when we have a faculty appointments committee meeting. Any time somebody says, ‘We should really prefer this candidate or this candidate because this person would add diversity' - don't say that! You can think it, you can vote it, but our discussions are not privileged, so don't ever articulate that that's what you're doing.”

Of course, while elite college administrators seek to evade the effects of striking down Affirmative Action, the risks to other sectors of society to future adverse court rulings have increased.  Since the legal basis for Affirmative Action which was based on the Bakke decision in 1978 is now gone, so is the legal basis for discriminatory Diversity, Equity, and Inclusion policies that require discrimination against certain workers to create diverse work forces.  Federal and State minority contract set aside programs are also at risk (or should be) as well as racist DEI training which has been challenged as creating a hostile work environment.

Students for Fair Admissions v. Harvard will turn up the heat not turn it down.  Because while the governing, educational and C-suite elites all want to continue racial and ethnic categorization of the populace, the general public does not.

In the 20 years prior to the Students for Fair Admissions case, despite favorable court decisions allowing Affirmative Action, nine states have either, through citizen initiatives or through their legislatures banned Affirmative Action in college admissions and state hiring.  These included even California and Michigan whose Affirmative Action programs had been approved by the Supreme Court for UC-Davis and the University of Michigan.

The week before the Students for Fair Admissions decision came out, in a PEW poll, 50% of the respondents disapproved of Affirmative Action to only 33% who approved with 17% having no response. 

But these trends don’t assure that we are going to be a color-blind society any time soon. Opposing the side of the populace that believes in a color-blind society, there is the burgeoning Diversity, Equity and Inclusion industry populated by administrators, consultants, academics, government officials and race hustlers whose very livelihood is at stake with the death of discrimination in America.  Their economic existence is at risk and like the bigots of the late 19^th century, they will not go quietly.

Advocates for critical race theory are already spreading the idea that it is racist to be color-blind and that society contains systems that will always require remedial measures (discrimination) for their favored their racial and minority groups.

A Suggestion: In my humble view, I agree with Justice Roberts in his opinion in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

We need to quit looking to the past to give advantages to one racial group over another only to be faced in the years ahead by other purported victims of other races and ethnic groups who believe that it is now their turn to get even. We need to start now to implement the dream of Dr. Martin Luther King where all are judged by the content of their character not the color of their skin.

Until the day comes when a Presidential candidate is vilified for openly stating that the main qualification for a Vice Presidential selection or a Supreme Court nominee is that it be a black female, we will continue to be a racist nation where all men are not created equal under the law. 

Until that day comes, passions will continue to flare as we struggle with societal fairness and decency.  Until that day comes, we will fight and be divided. Are we on the path, as our ancestors were in the 1850s, when passions over race resulted in a bloody civil war?  Hmmm …we shall see.