Is Affirmative Action Near Its Expiration Date?

Writing in the Washington Post, Megan McArdle points to the threat to racial preferences posed by the nomination of Brett Kavanaugh to the Supreme Court, noting that although his nomination has led to much handwringing over the fate of Roe v. Wade, the future of “another landmark case,” Regents of the University of California v. Bakke (1978), is also at risk.

It was Bakke, after all, that first approved “the Harvard Plan” of “diversity”-justified discrimination that is now under attack in federal court. In 1978, Justice Powell swallowed Harvard’s Kool-Aid claim that race was just “one factor among many” that could “tip the balance” in close cases. Given all the data that have been released in Students for Fair Admissions v. Harvard, however, it is no longer possible to support that argument unless one is employed by Harvard or wearing politically correct blinders.

I always find McArdle’s columns impressively written and argued, and usually, agree with her, but this column — like some of her earlier writing on race — not so much. Perhaps she has misgivings about racial preferences, but the reservation most forcefully expressed here is with the euphemisms used to disguise them.

Related: Harvard, Not Trump, Could Kill Affirmative Action

“We talk about ‘plus factors,’” she writes, “when we mean lowering the qualifying standards for black and Latino students; we talk about ‘diversity’ when we’re really trying to right past and present wrongs.” She cites approvingly Harvard law professor Jeannie Suk Gersen’s claim that all the talk about “diversity” sows “analytic confusion” by disguising the fact that affirmative action is really about helping “groups that have been wronged and held back.” Maybe that is what “we” are trying to do, but the courts have ruled out correcting past wrongs as a justification for discriminating because of race in the present.

Although Gersen volunteers that she has been subjected to anti-Asian stereotypes, she argues that “some amount of racial balancing seems unavoidable” since we “should not want the composition of our elite universities to be wildly out of proportion to the racial composition of our country.” Thus, she finds it perfectly acceptable, so long as “diversity … is central to an elite school’s mission,” that “an Asian may have to swim upstream to be admitted.”

Gersen does not mention if she cares whether elite universities are “out of proportion” to the religious, ideological, or economic composition of the country, or whether it matters if Chinese, Japanese, or Koreans are “overrepresented” among the Asians admitted. She does make it clear, however, that she has no objection to Asians swimming upstream against blacks and Hispanics, who are carried to admission floating on a strong current of racial preference. Her only objection to “race-conscious holistic review” is the “sub-rosa deployment of racial balancing in a manner that keeps the number of Asians so artificially low relative to whites” [emphasis in original].

“Swim upstream,” of course, should have set off McArdle’s euphemism alarm, since it hardly disguises the outright racial discrimination against Asian applicants. So, for that matter, should “race-conscious,” since the relevance of race is not that admissions offices are “conscious” of it but that they rely on it, often quite heavily, to benefit some applicants and burden others.

Related: The Coming Implosion After Diversity’s Victory

McArdle recognizes that “stripped of euphemism, racial balancing doesn’t look good,” but she’s reluctant to discard it because “it does have some merit: Elite institutions that systematically and markedly differ from the general population create a gaping social wound that never heals.” And she endorses Bakke’s “kludge” of “tacitly permitt[ing] semi-quotas” because otherwise “stark racial gaps” would have been “hard to close without it,” which “would have been morally questionable and politically disastrous.” She thus endorses John McWhorter’s recent argument in “Affirming Discrimination” that “[r]acial preferences were a fine idea in the 1960s and 1970s when they arose.”

At least McArdle is consistent. Back in 2009, she wrote in The Atlantic that even if “everything [critics] say about affirmative action is true,” so what? Even if “racial preferences … are a problem,” they are “a small problem for America…. Making race, or racial politics, the central complaint,” she continued, “makes it seem like your biggest policy priority is making sure that not one minority in the land gets anything they don’t deserve.”

Similar hand-wringing can be found in a recent Chronicle of Higher Education article by Mark Yudof, former dean of the University of Texas law school and, more recently, former chancellor of the University of California, and Rachel Moran, former dean of the UCLA law school. They note that there is “some irony in the fact that the complainants in the current Harvard investigation are not white but Asian-American.” That is only ironical, however, if one assumes that critics of racial preference care only about whites being disadvantaged, which is manifestly not true.

Related: Harvard Says Asians Lack Courage, Kindness, Likability

Like McArdle and Gersen, Yudof and Moran add that “Bakke has survived to this day, as have the ambiguities and anxieties that surrounded the case 40 years ago.” McWhorter thinks it should not have survived so long, that “racial preferences, in being maintained so far past their sell-by date, now maintain rather than break with toxic preconceptions we should be long past.” In other words, that racial preferences were fine … until they weren’t. Like McArdle, he appears a bit too willing to set aside the non-discrimination principle.

Despite their differences, McArdle, Gersen, and McWhorter all share one important similarity in their approaches to affirmative action: none of them pay any attention to what for a long time was the defining principle justifying racial equality: that individuals should be treated without regard to race, creed, or color. And, excepting a few passing references to Bakke and subsequent Supreme Court toleration of “diversity”-justified discrimination, nor do they pay much attention to the law, and none to statutory law.

McArdle concludes her article by observing that the next Supreme Court Justice will be faced “with an uneasy choice as the court steers us into an America where race is no longer a simple matter of black and white. But it will be much easier to navigate without a fog of euphemism clouding his view.”

By all means, let us burn off the fog of euphemism, but I strongly suspect that Judge Kavanaugh’s view of racial preference is not clouded. The choice confronting him or the Court is not difficult, complex, or ambiguous. It may be as simple as following black letter law.

Most of the criticism of Judge Kavanaugh from the progressive/academic/media/Democratic complex has concentrated on his alleged ideology. Typical is the NAACP’s description of him as “a dangerous ideologue whose extreme views on civil rights would solidify a far-right majority on the Supreme Court.” A more apt concern, at least regarding affirmative action, is not his politics; it’s what he said after being nominated to the Supreme Court by President Trump: “A judge … must interpret the law, not make the law. A judge must interpret statutes as written.”

In order to let the camel’s nose of “diversity” under the anti-discrimination tent in Bakke, Justice Powell ignored Title VI “as written.” He in effect took Congress’s months-long deliberations and the resulting text off the field altogether, concluding that whatever Congress said, it meant whatever the equal protection clause of the 14^th Amendment means, and he concluded that “equal protection” was elastic enough to allow holistic reviews that allowed race to “tip the balance” in favor of members of underrepresented races. How embarrassingly ironic that the critics have proved more prescient than the sponsors of the Civil Rights Act or Justice Powell.

Over the years progressives have notoriously attempted, often with disappointing success, to substitute a “living Constitution” for the written one we have. In Bakke Justice Powell took that approach one giant step further, giving us a living (more like a dead letter) statute. And adding shameful insult to injury, some years after Bakke Justice Stevens completely reversed himself, concluding that Title VI was not dispositive because it was “poorly constructed.”

All those who believe that “discrimination” means what Senator Humphrey said it meant in 1964 and thus that individuals should be treated “without regard” to race must hope that Judge Kavanaugh — if he becomes Justice Kavanaugh — believes what he said about interpreting statutes as written. If he does, whatever his views on “civil rights,” the days of the regime of racial preference may be numbered.