August 17, 2021

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.