Posted on July 18, 2021

The Supreme Court and Affirmative Action

Jared Taylor, American Renaissance, August 2003

Affirmative Action

On June 23, 2003 the US Supreme Court handed down its long-awaited decision on “affirmative action.” This thoroughly bad ruling is likely to set racial preference policies for the next generation, so it is important to understand it. With the slimmest possible majority of five to four, the court ruled that racial diversity in education is such an important part of learning that it justifies outright discrimination against whites (and sometimes Asians). The decision is an amalgam of assertion, fantasy and self-righteousness that was easily picked apart by the dissenting justices.

The enshrinement of diversity as a paramount national goal is a radical new interpretation of the Constitution, yet it is based on nothing more than bald assertions about its value. Justice Sandra Day O’Connor, who wrote the decision, cited business leaders who “have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” She has decided that this sort of exposure is so vital to the future of the country that it justifies an exception to the “equal protection” clause of the 14th Amendment that rules out group preferences. Arranging the student body of a college or graduate school so that there are plenty of students who don’t look like you is now a “compelling governmental interest.”

It is worth considering just what this worship of diversity means. If, for example, you went to college in Maine or Idaho with a bunch of white people, you do not have what it takes to function in the “increasingly global marketplace.” Presumably, the Chinese, who have lived all their lives among other Chinese, don’t have what it takes either, but they still somehow manage to run huge trade surpluses with us. Likewise, the Japanese and the Germans have somehow overcome the terrible handicap of not living and studying amidst the invaluable stimulus of blacks and Mexicans, and seem to do very well in the global marketplace, too.

This diversity-equals-exports argument is simply silly, but the justices cited another from retired soldiers that is no better: a “highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle mission to provide national security.” Please note that racial diversity is essential to national security. Are we to think that the overwhelmingly white command structure in Afghanistan and Iraq is a threat to national security? How did an army with no black field commanders manage to win the Second World War? The real wonder is that officers and businessmen actually make diversity arguments with a straight face.

As was pointed out in the June cover story about these cases, the most careful study so far of campus diversity has found that the more diverse a campus is, the less satisfied the students are with the quality of their educations. Even the University of Michigan’s internal evaluation of its own diversity programs found that blacks, in particular, do not want to confer the benefits of diversity by mixing with others but want to stick to themselves.

Diversity-worship is particularly jarring because the legal setting in which these decisions have been handed down requires that “diversity” have many demonstrable benefits. This is because, as Justice O’Connor placidly admitted, racial preferences violate the “equal protection” clause. She genuflects before the ideal of equal treatment, and approvingly cites Justice Lewis Powell in the 25-year-old Bakke decision: “when governmental decisions ‘touch upon an individual’s race or ethnic back-ground, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.’” In other words, if the government or a state institution is going to practice racial discrimination, it had better have very good reasons for it. Astonishingly, Justice O’Connor and the other four concurring justices think the unmeasured and probably illusory benefits of campus diversity are so vital to the nation’s future they justify a clear departure from equal treatment.

To their credit, the justices appear to be a little worried by race preferences, and look forward to the day when they end: “[R]acial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle [of the 14th Amendment].” Consequently, wrote Justice O’Connor, “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today [namely, diversity].”

Also, the justices pride themselves on not giving the green light to just any kind of racial preferences. They issued the usual denunciations of quotas and racial balancing (“patently unconstitutional”), arguing that preferences cannot be applied mechanically but must be “holistic,” giving “serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Race can be an important factor but it must be handled mysteriously and not openly.

It is because of this distinction that the racial preferences practiced by the University of Michigan undergraduate college were found unconstitutional, but those practiced by the law school were not. As noted in AR’s earlier cover story, the college had a rating system with a range of 103 points, and simply added an automatic 20 points to the scores of all blacks, Hispanics, and American Indians. (Having perfect SAT scores was worth only 12 points more than getting every question wrong.)

No good, said the court. That smells of quotas. They liked the way the law school did it better. There, the admissions committee mulled and communed and pondered, and considered, and devised a system in which “all factors that may contribute to diversity are meaningfully considered alongside race.” The law school bureaucrats conceded that only 27 percent of the preferred minorities could have gotten in without race preferences — about the same percentage as in the undergraduate school — but since they conferred preference less mechanically, the justices blessed the process.

The justices were pleased that the law school did not necessarily make race the only or primary diversity “plus factor,” but asked all applicants “to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School.” Maybe even white people can be carriers of diversity. But, as black commentator Elizabeth Wright asks, what about students who just want a law degree and think this is all rubbish? Clearly, Michigan is no place for them.

In fact, if we really must have racial preferences, the undergraduate system was better than the law school’s. It was clearly numeric, and everyone knew how it worked (although U of M tried to hide their system, and divulged it only when forced). However, a transparent 20-points-for-blacks scheme is too open and straightforward; our rulers like their racial preferences veiled, mysterious and subjective. They want people putting thumbs on the scales in the back room, not out where everyone can see.

With a secret system, everyone is in the dark. If whites know that at U of M the deck is stacked against them by 20 points, they can apply to some other college where the anti-white bias was set at, say, 15 points. Blacks and Hispanics want to know where they get the most preference, too. The Supreme Court has now forbidden that kind of openness, so applicants take their chances with systems that, by law, must be whimsical and inconsistent.

In effect, the undergraduate college had a version of race norming, which is the cleanest, most open, and in fact the fairest way to discriminate against whites (see next article). However race norming, like the point system, has been banned. It is not mysterious and subjective enough.

Critical Mass

In addition to enshrining diversity as a vital national goal, the Supreme Court has given its blessing to a trendy new bit of sociology called “critical mass.” According to this doctrine, it is not enough to have just a few blacks, Hispanics, etc. A handful of non-whites could be admitted without racial preferences at all but the most demanding campuses, but the court says that’s not good enough for three reasons. First, there must be enough of them so they won’t be lonely, or pressured to think they are spokesmen for their races. Second, there must be enough to go around: whites must not have to stand in line for doses of diversity. And finally, there have to be enough of each kind of non-white for whites to realize they don’t all think the same: “racial stereotypes lose their force because nonminority students learn there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.”

This last is interesting on several counts. First, can we really expect sharp disagreement among blacks about “the legacy of slavery,” “400 years of oppression,” or “institutional racism,” which are, presumably, the areas on which their privileged perspective is meant to throw special light? How many blacks are going to join the campus Republicans? How many Hispanics are going to demonstrate for closed borders? In fact, the more non-whites show up on campus the more likely whites are to realize just how large a role racial solidarity plays in their views on all subjects.

On the other hand, if, as the Supreme Court tells us, there is no “minority viewpoint” what is the point of violating the equal protection clause in order to get them on campus? They are supposed to be valuable because they are different, not because they are just like whites.

As for the second purpose for “critical mass” — having enough non-whites to go around — does this mean whites have a right to demand the kind of personal exchange that is supposed to be so enriching? No one will ever speak these words, but theoretically whites at U of M have the right to say: “Hello, black person. Better qualified whites were denied admission so that your presence here would benefit me. Now, do something to enrich my campus experience.”

But does anyone really believe there is going to be lots of stimulating interracial intellectual cross-fertilization? Everyone knows — and campus administrators better than anyone — that students stick to their own kind. Most universities even encourage minority self-segregation in black-theme dormitories, Hispanic student unions, and sometimes separate graduation ceremonies. Even if contact with people of different races actually did improve us in some way, it rarely happens spontaneously, even on the most rigorously tutti-frutti campuses.

It is hard not to suspect there is a different reason academics — and Supreme Court justices who are careful not to rule in ways that offend academics — want preferences. Today, moral fashion requires hatred of “racism,” ostentatious sympathy for the Negro, and the appearance of solicitude for all non-whites. As Lino Graglia of the University of Texas Law School has pointed out, the people who run universities would be embarrassed if their campuses were overwhelmingly white (Asians don’t seem to count). A certain number of whites therefore have to be kept out so our rulers can look around the campus, see black and brown faces, and preen themselves on their moral superiority.

Of course, the most important practical effect of racial preferences is to give protected minorities a better shot at the brass ring at the expense of whites. Needless to say, Justice O’Connor puts it a little differently: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” She is willing to knock whites off the “path to leadership” to make it look open to every race.

Justice O’Connor then follows with a very hearty pat on the back to her own profession. Getting non-whites into law school, she says, is particularly important because so many of America’s leaders are, ahem, lawyers. She notes that half the state governors, more than half of US senators, and a third of congressmen are lawyers (she modestly forebore to mention that every Supreme Court justice is a lawyer). The message is clear: blacks and Hispanics must be hauled bodily up the ladder of success, qualified or not, since “effective participation by members of all racial and ethnic groups . . . is essential if the dream of one Nation, indivisible, is to be realized.”

If their consciences ever prick them because of the wrongs they are doing whites, our rulers need only contemplate the rosy vision on which so many are fixated: that of a raceless world in which people of all kinds live in joyous harmony. Promoting non-whites beyond their capabilities is a step towards the utopia we are all taught to crave.

Justice O’Connor’s delusions are underlined by her suggestion that racial preferences need last no more than 25 years. In the meantime, she suggests, universities should consider “sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.”

Like the rest of the country, the Supreme Court deliberately closes its eyes to the reality of race. If the court knew anything at all about race and IQ it would realize blacks and Hispanics will be no smarter in 25 years than they are now. Harvard Law School recently celebrated 35 years of racial preferences. Another 25 will make it a full 60 years. Let us go on the record with a prediction: In 2028 — even after 60 years — blacks, Hispanics and Amerindians will need just as much special handling to reach “critical mass” in elite institutions as they do now. Racial utopia will seem even more distant than it does today.

The path the Supreme Court has chosen — handing over privilege and power to non-whites — leads not to utopia but to dispossession. Sandra O’Connor has probably never heard of C.G. Tracey, the white Zimbabwean farmer AR reported on in the previous issue. Mr. Tracey was an enthusiastic collaborator in the transition to black rule in 1980, and is now said to be “heartbroken and confused” after being thrown off his farm along with other whites. The non-whites who acquire power with the help of foolish white Supreme Court justices will use it to advance their interests even further at the expense of whites. Sandra O’Connor will not live long enough to meet the same fate as Mr. Tracey, but she is ensuring something similar for her grandchildren. We cannot know exactly what form dispossession will take, but it will be as unpleasant as it is certain, and it will help forge a newly-awakened awareness among whites of the crisis they face.

Although the press has not quoted from them at length, the racial preferences decisions prompted several sharp dissents. Chief Justice William Rhenquist scoffed at the new doctrine of “critical mass,” asking why it takes 90 blacks to achieve it, but only 40 Hispanics. In one recent year, he pointed out, the law school had only three Amerindians. What happened to “critical mass”?

What the law school really did, he pointed out, was admit protected minorities in almost exactly the same proportions as their numbers in the applicant pool. “Stripped of its ‘critical mass’ veil,” he wrote, “the Law School’s program is revealed as a naked effort to achieve racial balancing,” and is therefore precisely the kind of program the majority says is “patently unconstitutional.”

He was also very suspicious of the 25-year sunset provision:

These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School’s use of racial preferences on a seemingly permanent basis.

Justice Antonin Scalia wrote sarcastically — even angrily — about the alleged benefit derived from a racially-mixed student body:

This is not, of course, an ‘educational benefit’ on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law — essentially the same lesson taught to (or rather learned by, for it cannot be ‘taught’ in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.

He referred bitterly to the majority opinion’s assertion that getting to know people of other races makes us better citizens: “And surely private employers cannot be criticized — indeed, should be praised — if they also ‘teach’ good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.”

Justice Scalia is also contemptuous of the hair-splitting distinctions the majority draws between preference programs that are constitutional and those that are not: “Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today’s GrutterGratz split double header [law school preferences good, undergraduate preferences bad] seems perversely designed to prolong the controversy and the litigation.” He predicts fat times for the lawyers who will haggle over which discrimination programs are legal and which are not.

Justice Clarence Thomas also scoffed at the idea racial diversity is a “compelling state interest,” arguing that what the University of Michigan really wants is something different:

I refer to the Law School ‘s interest as an ‘aesthetic.’ That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them.” He goes on to point out that if this ‘aesthetic’ is so important, the law school can get it without racial preferences, simply by lowering standards for everyone. In his view, it is better to throw out selectivity rather than resort to dangerous and demeaning government-mandated racial categories.

Justice Thomas even cited the study quoted in AR two months ago, which pointed out that the more diverse the campus, the less satisfied the students. He also noted research suggesting that blacks do better at historically black colleges than they do at largely white ones, which likewise undermines the rationale for “diversity.”

In a particularly astute comparison, he pointed out that the same court that now allows race discrimination at U of M, banned sex discrimination at the Virginia Military Institute. VMI argued that its “adversative” method of education was a worthy goal that would be sacrificed if it admitted women. Not good enough, said the court, even though sex discrimination is subject only to “intermediate” rather than “strict” scrutiny, that is to say, it is permitted to attain goals far less urgent than “compelling state interests.” Campus race diversity is so important it justifies the judicial equivalent of nuclear weapons: racial discrimination. The advantages of VMI’s martial, male-only education are so insignificant, they cannot even justify sex discrimination, which the Supreme Court holds to be legally far less objectionable.

Is there anything to like about this set of decisions? Theoretically, yes. It does not require racial preferences in the name of diversity. It only permits them. Also it says, essentially, that aside from compensation for recent acts of direct discrimination, achievement of diversity is the only grounds for preferences.

The states of California, Texas, and Florida have either passed laws or voted referenda to outlaw racial preferences by state universities. These rulings do not strike down those laws, nor do they provide grounds for legal challenge. However, by endorsing diversity so enthusiastically, the Supreme Court has given tremendous support to opponents of those laws. It will be interesting to see whether state houses maintain their independence or whether they all flock to the court’s colors.

What will be the effect on private companies? Many diversity officers are already jumping for joy; they have a clear mandate to discriminate against whites. Preferences are not obligatory, but big companies will keep at them because they are often the only way to hold off lawsuits. Only by discriminating against whites can an employer hire enough non-whites to appear — in the eyes of our obsessively egalitarian society —  not to be discriminating.

However, there is interesting material in these opinions for any company that wants to buck the trend. It is now on the official Supreme Court record that a company cannot have a critical mass of top-level blacks or Hispanics without racial preferences. If, as so often happens, an employer is in the dock because he doesn’t have enough dark faces in management, he can argue that this was simply because he didn’t practice racial preferences. The court encourages them but doesn’t require them, and the record is clear: “critical mass” cannot be had without them. We shall see if any American company is bold enough to mount such a logical defense.

Finally, there is a deeper lesson to be learned from the Supreme Court that goes beyond whether these are good or bad decisions: they would not be necessary in a homogenous society. The current decisions happen to be bad. There may be good decisions in the future. But even good decisions are worse than the fact that decisions must be made. For as long as the United States remains the aggressively multi-racial country it has chosen to become, it will be cursed with the consequences, legal and otherwise.