SFFA v. Harvard, Honor, and Sadness

David Super

     I had not planned to write about this decision:  many are far better-qualified, both on this blog and elsewhere.  I cannot, however, escape a great sadness that this decision’s impact will be devastating in large part because of the very different kinds of people who engage in race-conscious decision-making. 

     Some people will absolutely refuse to admit or mentor (or to hire or promote) African-Americans merely because they are African-American.  Other people, likely many more, will place a thumb (or foot) on the scales against African-Americans, not absolutely excluding them but requiring much more from them than they do from whites. 

     Prior to Regents v. Bakke, there was also another (very small) group of people willing to reserve seats in selective educational programs or jobs for people of color.  Before and since Bakke, we also have had a (larger but still quite small) group of people willing to put a thumb (rarely a foot) on the scales in favor of people of color. 

     What kinds of opportunities this country provides for African-Americans could be seen as something of an arms race between these two groups:  for each individual African-American seeking education or employment, will she or he encounter more members of the first group than the second?  Surely some will indeed benefit from the second group offering a hand while being fortunate enough to miss those in the first (although the family members and friends on whom they depend for support likely had no such luck).  But we have every reason to believe that the hard and soft bigots in the first group have far, far more sway than the affirmative action idealists in the second and that many more careers are knocked back or entirely derailed by bigotry than are advanced by diversity programs. 

     Beyond speculations about their relative numbers, however, the members of these two groups are not at all the same.  Those pursuing affirmative action programs are driven by process values that also tend to drive them to be open and honest.  They gather data and hold meetings to discuss what kind of affirmative action program to have, and then they write confirming memos and periodic evaluations.

     By contrast, bigots are perfectly happy to operate in the shadows.  By definition, they are uninterested in data because they are firmly convinced of their beliefs; many insist all contrary data must be somehow manipulated.  They often need not coordinate with anybody.  When they are on an admissions or hiring committee, they have a plethora of euphemisms available (e.g., this candidate “just doesn’t have it”) and can make up in stubbornness what they lack in persuasiveness.  Other members of the committee without similarly intense motivations, and with process values favoring consensus, often shift to another candidate. 

     The Supreme Court has intervened in this arms race by disarming one side only.  In the forty-five years since Bakke, hard quotas have been outlawed.  Now even the softest preferences are banned.  Perhaps a few devoted champions of equal opportunity will go rogue and place a covert thumb on a scale here or there.  For the most part, however, racial inclusion will not be effective if it cannot operate in the open. 

     At the same time, the Supreme Court has left the bigots largely free to keep doing what they have been doing.  Six years before Bakke, the Court in Jefferson v. Hackney feigned ignorance as to why Texas paid higher welfare benefits to predominantly white categories than to those in which most recipients were African-American or Latino/Latina.  The year after Bakke, Personnel Administrator v. Feeney found that even if selection criteria are known to disfavor a protected group, it is not legally actionable as long as discrimination was not the purpose.  (The Model Penal Code often declines to differentiate between knowing and purposeful acts.)  Nine years after Bakke, McCleskey v. Kemp shrugged off overwhelming evidence that the death penalty is applied entirely differently for white and African-American people because the bias was not explicitly acknowledged or otherwise indisputable in a particular case.  And even when bigots blurt out what they are really thinking, courts often dismiss those as “stray remarks.”

     The result is no semblance of the color-blind society the Court claims to champion.  Instead, it is a regime in which honest and sincere idealists openly pursuing greater equal opportunity are enjoined while cynical bigots can do as they please as long as they maintain the thinnest veneer of deniability.  It burdens bigots little to prohibit them from acting openly; it completely shuts down counter-vailing affirmative action to stop it from acting openly because both the program and the people carrying it out are wholly ill-suited to operating in the shadowy world the Court has made safe for bigots.  In other settings – notably its new Major Questions Doctrine – the Court places a premium on stating reasons.  Here, it has established a system that privileges bigots precisely because they do not do so.

     Put another way, the Court claims to be seeking a society in which race does not determine life opportunities, but it is quite choosy about what costs must be borne to reach that goal.  The real but relatively remote possibility of error in an adjudication of discrimination based on compelling statistical evidence is too high a price for the Court.  But open and accountable measures to offset some of the bigotry the Court’s standards of proof allow to persist are so intolerable that the Court prefers to leave the field to the bigots.  This makes sense only if one embraces a spectacularly narrow, and ahistorical, definition of racism.

     I should also mention a third group, facially far more respectable than the bigots.  Those are the people comfortable in making important decisions on other people’s futures based on criteria that are nominally color-blind but with a huge racial valence.  This group would include those that admitted me to Princeton, likely because my father was a graduate.  (Perhaps I would have been admitted anyway, but another comparable school from which my father had no degree was unimpressed.)  Were my father African-American (or, likely, Jewish), he would not have been a Princeton graduate.  This group also includes those that hired me for various jobs because I speak like the son of two well-educated English teachers that I am. 

     This third group says it does not mean to intervene in the struggle between the first two, but it is placing still more thumbs on still more scales.  And these thumbs no longer can be offset.  Much of this third group’s work is also in the shadows, immune from the social, political, and legal scrutiny continually directed at affirmative action.  We can and should end legacy college admissions, but we should not deceive ourselves that this is more than the barest tip of an iceberg of skewed, largely indefensible criteria lurking just beneath the surface.

     All this leaves me very sad.  I am not sad that people who believe in equal opportunity also believe in reasoned and transparent governance and conduct themselves very differently from bigots.  But I am sad the Supreme Court is willing to exploit those laudable values to further advance the goals of those that scoff at both substantive and procedural justice.

     @DavidASuper1