Straight Talk About Affirmative Action

Winston Taney, American Renaissance, July 14, 2017

Is it here to stay?

Almost exactly one year ago today, the Supreme Court decided Fisher v. University of Texas, a case that lowered the constitutional standard for affirmative action and thus drove racial preferences even further into the bedrock of American law.

The Fisher decision was a surprise to many conservatives, but it should not have been for race realists. Indeed, when I tell conservatives that I study law for a living, they often ask in bewilderment: When will affirmative action finally be prohibited? I used to say it would be prohibited as soon as the Supreme Court had five reliable conservatives.

But now that I better understand the relationship between race and American law—having moved from conventional conservatism to race-realism—I answer the question differently. I now say: Not as long as the United States exists as it is presently constituted.

This often means conservatives distrust my expertise. After all, Charles Krauthammer predicted almost 15 years ago that the abolition of affirmative action “now seems at hand,” as it is “dying a popular and legislative death.”

Likewise, in 2003, Supreme Court Justice Sandra Day O’Connor famously wrote that “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” implying that preferences will soon die out.

Supreme Court Justice Sandra Day O’Connor (Credit Image: Sam Kittner/ZUMAPRESS.com)

That was 14 years ago, but preferences are not dying out. If anything, they are strengthening, and demands for “racial justice”—whether for removing monuments, renaming buildings, or holding black-only graduations—are becoming more strident and hysterical.

Consider Yale University. The undergraduate school is now 42 percent non-white (that number excludes those not specifying their race), and, according to the best estimate, it is now 27 percent Jewish—meaning that Yale is approximately 31 percent white gentile, whereas this group constitutes roughly 60 percent of the country. This means that white Christians are now, by far, the most underrepresented demographic group at one of the nation’s most elite schools, a school “[s]ettled by dreamers of a Puritan Utopia.” What we have now is a multicultural dystopia, recently characterized by this notorious exchange:

Yet the non-white students still see themselves as a persecuted minority. And they accordingly demand more and more—more building names changed; more non-white faculty members, students, and administrators; more programs for non-whites.

Academics almost uniformly want to give these things to them. As Georgetown Law Professor David Cole has written in New York Review of Books about the protests at Yale (his undergrad and law school alma mater): “We must demand, with the students, more diversity in faculty and staff, greater resources for minority students, and greater sensitivity.” This is because, according to Professor Cole, racial bias “permeates American life, including in the hallowed halls of our nation’s best universities.”

This raises a fascinating question: Given that the people who control universities overwhelmingly believe that a school that is less than 1/3 white gentile needs more affirmative action and racial reconstruction, why do conservatives continue to believe that affirmative action is, as Dr. Krauthammer wrote, “dying a popular and legislative death”?

The conservative mistake is to think that traditional political and legal indicators—such as public polling and state legislation—matter. Indeed, conservatives think that once we pass enough laws banning affirmative action, this dreadful practice will finally be eliminated, so that we can all judge each other according to the content of our character, as our patron saint exhorted us to do half a century ago.

This conservative way of thinking is delusional. Any race-realist, even without legal training, could guess why, but here I will explain, in legal terms, why affirmative action will continue and grow so long as the United States remains as it is presently constituted.

The formal creation of affirmative action

The term “affirmative action” first appeared in federal law in the 1935 Federal Labor Relations Act, which required employers who discriminated against union members to take affirmative action to restore victims of discrimination to where they would have been without discrimination. But the way that we commonly use the term—to apply only to employers or universities that discriminate in favor of certain racial groups—did not become part of federal law until President John F. Kennedy’s Executive Order 10925, which required government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.” The literal wording of the order seemed to prohibit racial discrimination under the policy of “equal opportunity” but this soon came to require discrimination in the expectation of “equal outcomes.”

This “equal outcomes” policy was codified under President Lyndon B. Johnson’s Executive Order 11246, which mandated rigid quotas for contractors receiving a certain amount of money from the federal government. In a famous Howard University commencement speech, written by neoconservative legend Daniel Patrick Moynihan, LBJ explained to his black audience the idea behind this executive order: “We seek not just . . . equality as a right and a theory but equality as a fact and equality as a result.”

(Recordings of Moynihan’s conversations with Richard Nixon show that he had a realistic understanding of racial differences in intelligence—at least by 1971—and knew that “equality as a result” was impossible. However, he and Nixon pursued egalitarian policies, and agreed that “we must never tell anybody” the truth about race.)

President Lyndon B. Johnson delivering the commencement address at Howard University.

The LBJ quota system soon migrated into the private sector with the Supreme Court’s unanimous decision in Griggs v. Duke Power Company (1971), which held that any employment practice that has a disparate impact on the basis of race (such as an IQ test) is inherently suspect under Title VII of the Civil Rights Act of 1964. As a result of the Griggs decision, the most effective way for employers to guard against lawsuits was to adopt racial quotas and hire enough protected minorities so as not to be subject to disparate impact litigation.

Academia joined the diversity game around this time. Harvard was the first to adopt affirmative action formally, with what is now known as the “Harvard Plan.” This was the first admissions program to link the use of racial preferences to the educational importance of racial diversity. Academics often say, “Where Harvard goes, others follow,” and this was true of affirmative action. By the 1970s, most universities had adopted aggressive race preference plans, which led to several lawsuits.

University affirmation action in the Supreme Court

The first major lawsuit in this area to go to the Supreme Court was Regents of University of California v. Bakke (1978), a case that arose after Allan Bakke, a former marine and engineer working at a NASA lab, was rejected twice from the University of Davis Medical School, despite a solid 3.44 science GPA (3.46 overall) and scores in the 97th percentile on the science portion of the MCAT.

UC Davis rejected him, partly because he was roughly a decade older than the average medical school applicant, but also because Davis had adopted a policy of reserving a certain number of spots for non-whites. As a result of this policy, non-white applicants were admitted to Davis that year, on average, with a shockingly low 2.42 science GPA (2.62 overall) and an MCAT score in the 18th percentile on the science portion.

This difference in MCAT scores is like preferring someone with an 85 IQ over someone with a 130 IQ. Keep that in mind next time you see a doctor.

Mr. Bakke sued the medical school on the grounds that Davis, as a part of the University of California system, had violated the 14th Amendment, which prohibits states from denying citizens equal protection under the law. The Court, in a split opinion, held that the Davis program was unconstitutional because it operated as a strict quota. It reserved a set number of spots for non-whites, thereby treating whites and non-whites differently without sufficient justification for doing so.

But in the process of invalidating the quota, Justice Lewis Powell’s opinion, which was not joined by any other Justice, explained that if Davis had modeled its policy after the Harvard Plan (which was more individualized by linking racial preferences to educational diversity), it would have been constitutional.

Following Justice Powell’s guidance, universities ended strict quotas in favor of two different types of admissions policies: points systems, whereby certain racial minorities had a set number of points added to their GPAs and test scores, or so-called holistic systems, whereby through a more ad hoc process admissions officers granted unquantified preferences to applicants more likely to contribute to “diversity.”

Twenty-five years after Bakke, two such cases came to the Supreme Court, both from the University of Michigan system: Gratz v. Bollinger (2003), involving the use of a points system in Michigan undergraduate admissions, and Grutter v. Bollinger (2003), involving the use of a holistic system in Michigan law school.

The Supreme Court invalidated the points system in Gratz on the grounds that quantitative mechanisms too closely resemble the quotas rejected by the Court in Bakke. But the Court upheld the holistic system in Grutter on the grounds that, by purportedly taking each applicant’s contribution to diversity into account, it did not treat applicants only as a racial category.

This distinction between points and holistic systems may seem sensible, but it is not. What the Grutter decision did is provide an incentive for universities to invest even more money in the diversity industry—hiring even more “diversicrats” to make admissions systems appear individualized and holistic so as to conceal the extent of racial preferences.

Indeed, if you compare how quotas, points, and holistic systems operate in practice, they are essentially the same: They all involve privileging black applicants by approximately a half-standard deviation over Hispanic applicants, and slightly more than a full-standard deviation over white and Asian applicants.

Consider, for example, the difference between the undergraduate and law school admissions preferences in the Gratz and Grutter cases. The Gratz undergraduate points system amounted to a 230-point addition for blacks on the 1600-point SAT scale, slightly more than a standard-deviation preference. The Grutter law school holistic system effectively amounted to a roughly ten-point addition on the 180-point LSAT scale, again slightly more than a standard-deviation preference. It did not matter that one preference operated through a math formula (Gratz) and the other through a purportedly holistic system (Grutter); the results were the same.

The real difference between the two system is the number of admissions officers a university must hire to camouflage its racial preferences in feel-good diversity talk. Now, almost all universities employ vast diversity committees to disguise the extent of their racial preferences. The 2016 Fischer case represents the Supreme Court’s formal abdication from policing this nasty business. Even in states that have formally banned affirmative action, such as California and Michigan, the practice continues discreetly and largely to the same extent as before, through increasingly complicated admissions programs, all designed to conceal that standard-deviation preference. This is described convincingly in Professor Tim Groseclose’s account of the UC system.

One of the most fascinating things about the Gratz and Grutter litigation is that it allowed the public to see how affirmative action works. Here are some numbers based on the supposedly “holistic system” upheld as constitutional in Grutter:

  • A black applicant with a mediocre 156-158 LSAT (roughly 70th percentile for all test takers) and a mediocre undergraduate GPA of 3.25-3.49 had a 100 percent chance of admission (10/10 were admitted in the year under investigation).
  • A white applicant with the same mediocre numbers had less than a 2 percent chance of admission (1/51 were admitted in the year under investigation). In fact, a white would not have even a likelihood of admission until scoring a 167-169 LSAT (roughly 96th percentile for all test takers) and a GPA over 3.50. Even more strikingly, a white with a nearly perfect LSAT (170 or above) and nearly perfect GPA (3.75 or above) would have a lower chance of admission (94 percent) than a black with the mediocre 156-158 LSAT and mediocre undergraduate 3.25-3.49 GPA noted above. That is a nearly two standard-deviation preference on the LSAT alone!

What may be the most interesting piece of data is that, of the ten blacks admitted with a mediocre 156-158 LSAT and 3.25-3.49 GPA, only three accepted the offerpresumably because seven had offers from even higher-ranked schools—a particularly troubling possibility, since the University of Michigan Law School is a top-10 ranked school with a median LSAT of 168.

This strongly indicates that at the nation’s top five law schools—such as Harvard and Yale Law, where a significant percentage of students go on to become judges, scholars, and politicians—admit substantial numbers of blacks who would barely gain admission at schools ranked in the 50-100 range if they were white. To put this in perspective, consider how applicants with similar numbers are treated at a mid-level school such as the University of Houston Law Center, which is not even ranked in the nation’s top 50,  but where applicants with a 3.25-3.49 GPA and 155-159 LSAT have a meager 14 percent (27/183) chance of admission. Black applicants with these unimpressive numbers have a nearly 100 percent chance of admission to the nation’s top 10 law schools. Whites with the same scores will not get into a top 50, or perhaps not even a top 75 law school.

Looking ahead

We frequently hear from liberals about the racist nature of standardized testing. They’re right: Any effort to study and evaluate human beings according to intelligence—a trait that is strongly linked to race—is going to be “racist” in the sense that it will discriminate on the basis of race.

What liberals ignore, however, are the abundant efforts that have been made to prevent standardized testing from having a racial impact. The Educational Testing Service, for example, deliberately tried to make educational testing more information- than IQ-based, so that “the Northeastern Negro would score higher than the Southern whites.”

ETS could not produce that result. Indeed, the researchers in the 1960s were shocked to find that “[d]ifferences between schools account for only a small fraction of differences in pupil achievement.” Black-white differences were much greater than economic and regional differences within the races.

Nevertheless, under both Presidents Johnson and Nixon, Daniel Patrick Moynihan promoted the notion that racial integration was the key to reducing the black-white performance gap, even though there was no evidence for this. Following Moynihan’s misguided prescription, hundreds of billions of dollars have been wasted trying to reduce the black-white gap: school desegregation, busing, gold-plated facilities for black schools, and billions of dollars squandered on block grants under No Child Left Behind.

Nature cannot be changed: Black-white differences in almost every intellectual field remain at a standard deviation. And racial preferences administered through affirmative action, whether in college, law school, or medical school, continue to reflect that standard-deviation difference.

After more than 50 years of ingenious but futile social experiments, it is time for us to accept the truth: In a multiracial society, all standards—whether in academics, etiquette, or aesthetics—must be diluted and manipulated if we want an equitable cross-section of the population to be represented in various pursuits. Europeans, on average, do not run as fast as Africans, and Africans, on average, do not reason as well as Europeans. Putting these disparate people together in a society therefore requires either: (a) accepting unequal outcomes, or (b) demanding equal outcomes and jimmying selection criteria to achieve them. We tried the former and found the results unacceptable. For the past 50 years, liberals have been trying the latter—at least in those areas in which whites have an advantage—with disastrous consequences for cultural, professional, and intellectual life.

Photo by Jim West/ZUMA Press. (©) Copyright 2006 by Jim West.

Racial preferences invariably run up against the brute facts of IQ. If we consider an IQ of 120 the minimum for a reasonably selective college, there are only about 1,500 black 18-year-olds who qualify each year. About 237,000 non-Hispanic whites qualify, as do a substantial number of Asians and some number of Hispanics.

The conservative, “equal opportunity” solution—whereby we pretend there are no racial differences and we live together peacefully in a color-blind society—is therefore not possible. Cutting off racial preferences would almost certainly mean no blacks in the top colleges, law schools, medical schools, and other competitive environments. There would be just a handful in the next tier. Large elite state schools, such as UVA and Michigan, would have just a sprinkling of black faces, barely perceptible in their massive student bodies. There would be substantial numbers of blacks only at the least competitive schools. There would be almost no elite black judges, lawyers, doctors, or professors.

After so much effort to get blacks into every elite sector of society, this would be a wrenching change. It would probably not be a peaceful change. We need to stop mouthing platitudes about “equal opportunity,” and start thinking seriously about our multiracial mess.

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Winston Taney
Winston Taney is a constitutional law professor and conservative Christian, struggling to believe in constitutionalism, conservatism, and Christianity in 21st century America.
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