X Close

Is this the end of affirmative action? Anti-racism has become a form of discrimination

Have the Left overstepped? (Adam Glanzman/Bloomberg via Getty Images)

Have the Left overstepped? (Adam Glanzman/Bloomberg via Getty Images)


August 17, 2021   5 mins

Early last year, American liberals celebrated a huge Supreme Court win. In Bostock, a 6-3 majority ruled that the anti-discrimination protections in the 1964 Civil Rights Act covered sexuality and gender identity. It means, for example, that an employee cannot be fired for expressing interest in a LGBT softball league, or for being gay themselves. The triumph was so widely accepted that the opinion was delivered — and therefore supported — not by one of the court’s liberals but Neil Gorsuch, a Trump appointee.

But while Gorsuch and his colleagues applied protections against discrimination on the basis of “race, colour, religion, sex or national origin”, he also made clear that the legislation in question was designed to protect “individuals not groups”. According to the ruling, a scheme that “promotes equality at the group level” would fall foul of the law if it involved discrimination at the individual level.

And so, even as Bostock was heralded as a major moment for LGBT rights, Gorsuch’s opinion set off alarm bells in progressive circles. In particular, many wondered whether his understanding of discrimination spelt trouble for the system of race-based college admissions that has been in place since the civil rights era. Did the last great liberal judicial victory contain clues about the next great liberal defeat? Is “affirmative action” doomed?

These questions may soon be answered. The Supreme Court is currently deciding whether to hear Students for Fair Admission v. Harvard, a case brought by a group of Asian-Americans who claim they were illegally discriminated against as part of the university’s pursuit of a diverse student body. Lower courts have found in favour of Harvard, but many suspect the conservative majority on the Supreme Court may see things differently.

The past pronouncements of Chief Justice John Roberts, without whom a defence of affirmative action has little chance of survival, suggest sympathy with the students’ arguments. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” was his blunt summation in a 2006 case concerning high school integration efforts.

The lawsuit against Harvard doesn’t just accuse the university of discriminating against Asian-Americans but doing so systematically by marking them down on personality scores that rate traits such likability, “positive personality”, courage and kindness. Analysis of admissions data by the Duke University economist Peter Arcidiacono, an expert witness in the case, found that an otherwise identical Asian-American male with a 25% chance of admission would have a 32% chance of admission if he were white, a 77% chance if he were Latino and a 95% chance if he were black.

Suspiciously, the very smartest Asian American students tended to score higher for their personalities. The plaintiffs argue that this amounts to a soft quota system and compare its enforcement to the way in which Harvard used “character and fitness” criteria to, with a nod and a wink, cap the number of Jewish students on campus in the 1920s and 30s.

For now, the court has bought itself time by asking the Biden administration for its view of the case. Nonetheless, the stage is set for an almighty battle over one of the most contentious policies to emerge from the civil rights era.

Indeed, whenever the Supreme Court has dealt with affirmative action, its judgments tend to be reflected in the racial politics of the time. In the 1960s, affirmative action was presented as part of a package of emergency measures necessary in the immediate aftermath of Jim Crow and legal segregation. By 1978, the court moved away from explicit desegregation. In Bakke, it found that racial quotas were unconstitutional but that the pursuit of “diversity” for its educational benefits was legal, and that race might be considered a “plus factor” in the admissions process. (It is this vague goal of diversity that explains the scoring system under fire in the Harvard case.)

But this 20th-century liberal fudge is getting harder to sustain. The backdrop to any affirmative action case being heard by the Supreme Court in the near future will be the increasingly strident anti-racist creed preached on college campuses, supported by the Democratic Party and subscribed to by the media and business elite.

Ironically, it is the assertiveness of today’s racial politics that may make the defence of affirmative action more difficult. In other words, the problem for the American Left is that they have said the quiet part out loud. Rather than hiding behind the fig leaf of the pursuit of the educational benefits of diversity, or arguing for time-limited, case-specific policies, many progressives are happy to call a quota a quota and see the fight against racism as a never-ending all-encompassing struggle.

Take Ibram X Kendi, today’s prophet of anti-racism. He is explicit about prioritising group iniquities over discrimination against individuals. In fact, his whole approach is about tinkering with outputs rather than striving to treat people equally. “The defining question is whether the discrimination is creating equity or inequity,” he writes in How To Be Antiracist. “If discrimination is creating equity, then it is antiracist. If discrimination is creating inequity, then it is racist.”

To Kendi, equity is measured in terms of outcome, and has only been achieved “when two or more racial groups are not standing on approximately equal footing”. By Kendi’s logic, not only is a system of explicit racial quotas not racist; it’s the only truly antiracist approach.

The Biden administration doesn’t express things in such hardline terms. But it nonetheless claims to be putting “equity”, and not equality, at the heart of everything it does. In an early executive order Biden defined equity as “the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment”. That may sound innocuous enough, but in reality it has so far meant numerous straightforwardly discriminatory policies.

And many of these measures have already run into legal roadblocks. In Wisconsin, a judge has halted a Department of Agriculture programme that allocates loan forgiveness on the basis of race. In Texas, a judge has ruled against a measure in the Covid relief bill that explicitly prioritised restaurant-owners of certain racial backgrounds.

The infrastructure bill that passed the Senate last week was also infused with the logic of equity. For example, in the bidding for contracts to install solar power or reconfigure the roads in American cities, the government will prioritise minority and female-owned businesses. Legal challenges will surely follow.

Perhaps a compromise can emerge. One option would be for an affirmative action approach focused on giving a leg up to Americans that really need it. Rather than engineering a cosmetic and subjective kind of diversity that keeps consciences clean and money flowing into the endowment pot, America’s elite colleges could positively discriminate in a more explicit but socially useful way. Richard Kahlenberg, an expert witness in the Harvard case, argues for socio-economic preference in college admissions, which would drop the offensive charade of personality assessments and target working-class blacks, hispanics and whites. It’d be a less dishonest, less divisive and almost certainly a more beneficial approach.

Meanwhile, if the Biden administration wants to target extra support at the neediest farmers, it need not pander to “equity” with openly discriminatory policies. Instead, it could simply
 target the neediest farmers. Doing so would be fairer policy and better politics.

In the meantime, whether in the Harvard case or elsewhere, a legal and political collision seems inevitable. There has always been a tension between the more expansive policies born in the civil rights era, foremost among them affirmative action, and the kind of colour-blind creed consistent with the constitution and preached by Martin Luther King and others. But today’s combative and ascendant anti-racism is stretching that tension past its limit. It is a powerful dogma — but it could soon meet its match in the Supreme Court.


Oliver Wiseman is the deputy editor of The Spectator World and author of the DC Diary, a daily email from Washington. He is a 2021-22 Robert Novak Journalism Fellow

ollywiseman

Join the discussion


Join like minded readers that support our journalism by becoming a paid subscriber


To join the discussion in the comments, become a paid subscriber.

Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.

Subscribe
Subscribe
Notify of
guest

20 Comments
Most Voted
Newest Oldest
Inline Feedbacks
View all comments
Simon Denis
Simon Denis
2 years ago

No. NO! There is no such thing as “positive discrimination”; there is discrimination on the basis of merit or on the basis of group membership – the first is fair, the second unfair. Anything which loads the dice of a competition is unfair and no, this does not include the whole of life experience. Competitions are discreet and detachable processes which create their own distinct criteria of justice. If you don’t have a chance, don’t enter the competition. If, because of single parenthood, addiction to crack, experience of abuse and a bang on the head you find it difficult to add or subtract, then offering you a place at Harvard to study mathematics is useless; it won’t help you, it won’t help the university. Pretending otherwise is a lie. And what then? To justify your place at university, do we go on systematically cooking the books until you become a professor or a chief scientist at NASA? When, at last, do we tell the truth? And this is where we hit the dark heart of the whole neo-communist movement – the idiot belief that there is no truth – or, “truth”; that the whole of society can be turned into Utopia by a gigantic game of “Let’s Pretend” enforced by continual tantrums. This also shows that competitive exams are in part measures of truth to start with. We can only know that this or that group is disadvantaged if we are honest about their academic performance. Then we can intervene, constructively and NOT in the vile, vengeful, counterproductive, inverted-fascist way of the modern left.

Jon Redman
Jon Redman
2 years ago
Reply to  Simon Denis

the idiot belief that there is no truth – or, “truth”; that the whole of society can be turned into Utopia by a gigantic game of “Let’s Pretend”

Presumably, that idiot belief includes itself in its own claim. That is, if nothing is objectively true, then the assertion that nothing is objectively true is untrue.

Sharon Overy
Sharon Overy
2 years ago
Reply to  Jon Redman

True (ha!). But the illogic of Post Modernist-derived stances have been pointed out for decades without resulting in any rethinking. Logic is, apparently, a sly trick of white, heteronormative patriarchy, don’t you know!

Simon Denis
Simon Denis
2 years ago
Reply to  Sharon Overy

True. The revenge of reason is decline. In the short term, it can be rendered powerless. Rather as an alcoholic can damage his liver without pain, until massive cirrhosis has set in, the mediocrities in charge of the west are drunk on a form of revivalist fervour immune to challenge or advice.

Drahcir Nevarc
Drahcir Nevarc
2 years ago
Reply to  Sharon Overy

Indeed so, I first encountered this rebuttal in Russell’s History of Western Philosophy, first published in 1946.

Jonathan Andrews
Jonathan Andrews
2 years ago
Reply to  Jon Redman

This statement is false

Alan Hawkes
Alan Hawkes
2 years ago
Reply to  Simon Denis

Just as there is no matter without anti-matter, so there is no discrimination in favour of one group without discrimination against others.

Lesley van Reenen
Lesley van Reenen
2 years ago

It is depressing indeed to constantly be reminded that logic and intrinsic goodness has been abandoned by ‘progressives’.

Galeti Tavas
Galeti Tavas
2 years ago

“It is a powerful dogma — but it could soon meet its match in the Supreme Court.”

It is not 2024 yet, and Biden’s handlers may yet decide to stack the Supreme Court with a couple dozen judges who make AOC seem centrist. Nothing is ever off the table with that strange puppet led organization.

Paula Williams
Paula Williams
2 years ago

Affirmative action (aka positive or woke discrimination) just means enforced discrimination to privilege a favoured group (typically anyone non-white/male).
Perhaps needs renaming to Diversity Before Merit.

Last edited 2 years ago by Paula Williams
John Barclay
John Barclay
2 years ago

Kendi’s logic is summed up as: give unsuccessful minorities (regardless of the reason) a free ride until the outcomes match. Any disparity is 100% attributed to racism, with all personal agency given a zero weight.
It’s actually horrifically patronising and condescending and essentially communist.
It takes about 5 seconds to see through this reasoning and immediately see the problems and perverse incentives it generates, yet here we are. Discussing this lunacy.

Last edited 2 years ago by John Barclay
Sheryl Rhodes
Sheryl Rhodes
2 years ago

Mr. Wiseman You wrote:
To Kendi, equity is measured in terms of outcome, and has only been achieved “when two or more racial groups are not standing on approximately equal footing”.
I’m not following this—it only makes sense to me if you change it to say that INequity is “when two or more racial groups are not standing on approximately equal footing.” IOW, that equity means that racial groups are all on approximately equal footing.
His view is that any negative disparity between racial groups is due solely to racism and thus the only moral response is to forcefully (and endlessly) make these groups equal in all ways, by any means necessary.
Kendi’s views and proposals are made even more of a nightmare because he believes that all PAST discrimination must also be recompensed. Past discrimination must be counter-balanced by extra, super-duper discrimination today. For instance, if every graduating class in US medical schools were to consist of 12.5 % black Americans (the approximate percentage of black Americans today) that would still not satisfy Kendi. Instead, his proposed new, all-powerful Federal agency would force medical schools to admit many more black students to make up for the fact that they were “under-admitting” black students for the past hundred+ years. I wonder how many years of medical schools admitting 100% black students would satisfy these requirements?

Tom Krehbiel
Tom Krehbiel
2 years ago
Reply to  Sheryl Rhodes

I caught that too, but assumed the opposite way to correct it. That is, the writer meant to say that equity was achieved “when two or more groups were standing on approximately equal footing”, but put a “not” in there that invalidated the statement.

Last edited 2 years ago by Tom Krehbiel
Drahcir Nevarc
Drahcir Nevarc
2 years ago
Reply to  Sheryl Rhodes

I think it’s probably just a typo.

David Kwavnick
David Kwavnick
2 years ago

“Anti-racism has become a form of discrimination.” Congratulations. You finally figured that out. The ultimate aim of the Kendis is to establish a James Raven system. What’s that? It’s Jim Crow for whites. Guess who is going to the back of the bus now.

Tom Krehbiel
Tom Krehbiel
2 years ago
Reply to  David Kwavnick

It should probably be James Dove or some other white bird than a raven, shouldn’t it?

Last edited 2 years ago by Tom Krehbiel
Brendan Newport
Brendan Newport
2 years ago

What we are seeing is the abandonment of class analysis in favour of racialist thinking. The bedrock of socialist thought is being cut-away – well being dynamited away, by this new breed of social engineers.
And it interprets class as being…worthless. Rather it is the color of your skin that determines what success will be dealt to you in life by the authorities, what help you will get in the event that circumstances see you laid-low. Racialist thinking has never been explicitly stated, but it’s a key aspect of US politics.
President Roosevelt’s New Deal excluded blacks from Social Security and the provisions afforded by the National Labour relations Act. So the Democrat Party can perhaps say it is following Roosevelt’s racialist thinking even now, as it favours some people for support, based on the color of their skin, rather than their circumstances. The desire to avoid distinction by class remains as strong now, as expressed by Democrats, as it did in the 1930s.

Christopher Chantrill
Christopher Chantrill
2 years ago

Ever since Marx, western ruling classes have used an “over/under” political formula to justify their power. This is most nakedly offered in the allyship narrative, of Oppressed Peoples and their Allies fighting against the White Oppressors.
For the Next Regime I propose a middle-against-the-rest political formula, of We All-American Patriots against wokey NPCs and their vote-bank Little Darlings.
And when the Next Regime steps in, I’m sure the Supreme Court will be happy to rubber-stamp the new narrative.

Alan Hawkes
Alan Hawkes
2 years ago

In the case of Bostock much of the discussion focusses on the word, “sex”, when it might appear simpler to assert that the drafters of the original Title 7 legislation meant, “gender” i.e. male, or female, at birth. The Supreme Court seem to have decided that sexual orientation, as claimed in post-birth life should be brought in – as gender-choice.
It remains to be seen what happens when a non-black applicant to an Ivy League university asks the court to rule that setting him/her a higher pass-mark than a black candidate breaches Bostock.

Richard Turpin
Richard Turpin
2 years ago

Equality of opportunity will never ever produce equality of outcome. The progressives therefore believe equality of outcome is justified by not providing equality of opportunity. They do this believing they are going to make society fairer, more equal and more harmonious. It’s idiocy of the highest order. People ill equipped for jobs they have been chosen for on the basis of an identity group will ultimately resent being given the job never knowing if they were the best candidate and people outside that identity group ,never presented with the opportunity, will always assume they weren’t. Universities need to select the best candidates based upon the applicants intellect and not the colour of their skin.
The fact educated people believe this is sustainable is shocking to me, the pitfalls and fallout are obvious to most of us. How can the courts defend it? How can a judge favour any form of racism in the name of equality of outcome? Society evolves by having the best qualified candidates in all jobs, in all walks of life, at all levels, including university placements. The moment we think otherwise we’re in deep trouble, if not already.

Last edited 2 years ago by Richard Turpin