Judge Kavanaugh And The Future Of Affirmative Action

[NOTE: An abbreviated version of this post appears on Minding The Campus today.]

[NOTE 2: Welcome Power Line readers!]

Dan Golden, who has written about affirmative action longer and better than just about anyone (see his The Gatekeepers, 2002, and The Price of Admission, 2006) has just written that “the use of racial preferences in college admissions is under greater threat than ever.” He was referring to the claims in Students For Fair Admissions v. Harvard College that Harvard discriminates against Asian applicants (which I discussed here and here) and a similar suit against the University of North Carolina, “either of which could put an end to affirmative action.”

Writing in the Washington Post on the same day, 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 SFFA v. Harvard, however, it is no longer possible to argue that with a straight face unless one is employed by Harvard or wearing politically correct blinders.

I always find McArdle’s columns impressively written and argued, and agree often with her, but this column — like, as we shall see, 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.

“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 on the basis 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 or not 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 Asian admits. 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.

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” (which I discussed here) that “[r]acial preferences were a fine idea in the 1960s and 1970s when they arose.”

At least McArdle is being consistent. Back in 2009 she wrote in The Atlantic that even if “everything [critics] say about affirmative action is  true,” in effect 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.”

I took issue with McArdle’s views here, especially her notion that critics of racial preferences are “suffering from the terrible, pervasive fear that some brown person, somewhere, is getting away with something.” With libertarian conservatives (as McArdle is often described) like this, who needs liberals?

Both McArdle’s and Gersen’s articles reflect a common belief in the complexity, the difficulty, of balancing what are seen as conflicting values in allocating scarce seats at selective colleges. Thus McArdle speaks of “the difficult trade-offs” and Gersen described the “complicated dilemma” of giving a boost to preferred minorities without unduly disadvantaging another minority. 

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.

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.

In fact, despite their differences — some subtle, some not — McArdle, Gersen, and McWhorter all share one important similarity in their approaches to affirmative action: none of them pays 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 with the exception of a few passing references to Bakke and subsequent Supreme Court toleration of “diversity”-justified discrimination, nor do they pay much attention to 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. Nor should it be. Call me simple-minded (you wouldn’t be the first), but I also do not believe the choice confronting him or the Court is 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 supposed 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 ideology or his politics but rather what he said in his remarks 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.”

The statute at issue in the Asians’ complaint against Harvard — the same one that should have controlled the result in Bakke but did not, Title VI of the Civil Rights Act of 1964 — is perfectly clear. It provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Justice John Paul Stevens argued eloquently in Bakke that the racial advantages and disadvantages at the core of the University of California’s affirmative action program were clearly prohibited by “the plain language of the statute … unless that language misstates the actual intent of the Congress that enacted” it. 

Stevens quoted extensively from the Congressional debate, such as the statement by Senator Humphrey, the Civil Rights Bill’s floor manager, that “discrimination” as used in the bill means “a distinction in treatment … given to different individuals because of their different race, religion, or national origin.” Moreover, Stevens noted, “the only suggestion” that the bill as worded would allow race to be used against any individual “came from opponents of the legislation,” such as one he quoted who argued that the term “discrimination” would be construed “as mandating racial quotas and “racially balanced” colleges and universities…. The concept of `racial imbalance’ would hover like a black cloud over every transaction.”

In order to let the camel’s nose of “diversity” under anti-discrimination tent in Bakke, Justice Powell ignored Title VI “as written.” In fact, 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 actual 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,” a reversal I severely criticized here.

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.