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Anybody who ever wondered whether affirmative action hurts institutions need only revisit the Supreme Court’s oral arguments for Students for Fair Admission v. Harvard, held on Halloween.
Sonia Sotomayor is the Court’s premier affirmative action justice — yes, even more than Ketanji Brown Jackson. KBJ, at least, doesn’t have a letter from Lawrence Tribe warning the president who picked her about how stupid she is, while Sotomayor actually does! And all of Sotomayor’s dubious intellect was on display that Halloween. In a display more horrifying than any holiday slasher flick, Soto mangled the distinction between “de jure” and “de facto,” a distinction known by every law student, not to mention many precocious middle schoolers. Transcript from Reason:
Justice Sotomayor suggested that there is still de jure segregation today:
JUSTICE SOTOMAYOR: So, even if we have de jure discrimination now or segregation now, Congress can’t look at that? Because we certainly have de jure segregation. Races are treated very differently in our society in terms of their access to opportunity.
A moment later, Justice Alito interjected:
JUSTICE ALITO: Are you aware of de jure segregation today?
Cam Norris, lawyer for SFFA in the Harvard case, said there was not.
Sotomayor interrupted, and sounded peeved.
JUSTICE SOTOMAYOR: It’s not clear that there’s segregation between there are large swaths of the country with residential segregation, there are large numbers of schools in our country that have people of just one race, there are school districts that have only kids of one race and not multiple races or not white people? De jure to me means places are segregated. The causes may be different, but places are segregated in our country.
I don’t think that is what de jure means. She is describing de facto segregation.
According to one eyewitness of the oral arguments, the court’s only non-affirmative action liberal, Elena Kagan, tried to ask a substantive question only to be cut off by another inane Sotomayor query. Kagan then “folded her head into her hands and then glared at Soto.”
Sounds like affirmative action is working wonders at America’s highest court!
Fortunately, Sotomayor is in the Court’s ideological minority for now. Soon, we hope, the Court will ban all race discrimination in college admissions. Court watchers view that ruling as inevitable. Ideally, the Court will go further, and abolish all race-based preferences currently doled out by the government in the name of “diversity” and “equity.” Theoretically, it could even ban the government from collecting race-based data, to prevent it from being abused to racially discriminate. A ruling of that scope would be one of the greatest victories for the American people and their historic values in the country’s history.
But Revolver must caution against overexuberance. Affirmative action is not something that can be crushed with a single decree of the Supreme Court. Affirmative action, quotas, and other forms of ethnic favoritism and patronage have become integral to the American system. Rooting it out will be a long struggle — a struggle that American patriots must be ready to fight. The Supreme Court is not going to rescue us singlehandedly. Ultimately, we must rescue ourselves.
A brief historical comparison is in order here. In 1954, the Court ruled, in Brown v. Board of Education, that racially segregated schools were unconstitutional. The next year, in Brown II, it ordered desegregation to proceed “with all deliberate speed.” Both rulings were unanimous, unequivocal, and terse — yet implementing them was a struggle. Roughly a third of America legally required segregated schools, and Jim Crow was deeply entrenched into the social order.
Most Americans have heard about how Dwight Eisenhower sent in the National Guard to integrate Little Rock High School. But the struggle to desegregate went far beyond one show of force in one city.
In Mississippi, fear of violence meant that it took nine years for any plaintiff to sue to desegregate the state’s schools. When Medgar Evers filed the first such lawsuit in 1963, a white supremacist murdered him shortly thereafter. In Virginia, politicians practiced “massive resistance,” opposing integration with legal tactics that would be unthinkable for a state government today. The state tried to ban integrated schools from receiving state funds, then have the governor shut said schools down. It tried using “Pupil Placement Boards” to assign students to schools, with race the unofficial but universal determinant of where a student went. It created programs to replace public school funding with tuition grants so children could attend private, segregated schools. Prince Edward County closed all its schools for an entire year rather than integrate. It was only through years of court rulings and federal pressure that pro-segregation efforts finally collapsed.
Many of the efforts to achieve integration, such as forced busing plans, went too far and had disastrous consequences. But the point is this: It was not enough for the Supreme Court to shout”Integrate!” and make it so. Sixty-five years ago, halting race discrimination required sustained legal and bureaucratic pressure.
Halting anti-white, anti-asian racial discrimination today will take the same kind of effort. In fact, it will take more. While Jim Crow was a regional practice by the 1950s, America’s modern system of racial discrimination dominates nationwide. And while America’s ruling elites mostly saw segregation as backwards and embarrassing seventy years ago, today’s corrupt ruling class are the ones most fanatically committed to preserving an anti-white racial hierarchy. President Joe Biden can vow to exclude well over 90 percent of the country from consideration for a Supreme Court seat, solely based on sex and skin color, and it barely merits a shrug.
More than 40 years ago, in United Steelworkers v. Weber, the Supreme Court upheld race-based discrimination in the workplace on the grounds that it was “transitional.” In 2003’s Grutter v. Bollinger, Sandra Day O’Connor predicted that affirmative action would only be needed for twenty-five more years. Both rulings were flimsy at the time, but today they are comical. Affirmative action isn’t some transitional practice. Awarding or denying jobs, admissions slots, and contracts based on skin color is a core part of the entire American experience.
Much of this dominance flows out of the legal doctrine of “disparate impact,” created in the 1971 SCOTUS ruling Griggs vs. Duke Power Co. As we explained last May:
Everything tyrannical about modern wokeness flows from this 1971 ruling and the calamitous legal doctrine it created: Disparate impact.
Prior to Griggs, legislation barring racial and other types of discrimination was presumed to cover deliberate discrimination. If a company refused to hire black applicants, that was racial discrimination, but if it simply required a high school diploma, or a college degree, or passing a job skills test, that was not.
Griggs threw all that out the window. Duke Power Company in North Carolina limited certain jobs at the company to those with a high school diploma, or those who could perform sufficiently well on one of two tests. Even though these requirements had no racial component at all, the Court held that they were illegal, because blacks were less likely to hold a high school diploma and were less likely to perform well on the tests. In other words, even without a discriminatory intent, the requirements had a “disparate impact” on one racial group, and were therefore illegal.
[D]isparate impact “makes almost everything presumptively illegal,” because everything has a disparate impact. This in effect gives near-absolute power to government bureaucrats and federal judges.
Fear of a disparate impact lawsuit has pushed companies and institutions to create vast HR and diversity bureaucracies. But what may have started as an irritating requirement has evolved, over the decades, into a powerful ideological commitment.
To get an idea of how stacked the system is in favor of racial discrimination, just look at the amici briefs filed in Students for Fair Admissions. A group of nearly seventy American companies — including Google, Facebook, General Motors, Northrop Grumman, Bain and Company, and Procter and Gamble — begged the court to preserve affirmative action, because they “rely on universities to create a pipeline of diverse leaders.”
Stanford, MIT, and IBM collaborated to tell the Court that “American businesses at the cutting edge of advancements in STEM depend on the availability of a diverse pool of qualified graduates of elite institutions” only possible through racial discrimination in admissions. Four ex-chairmen of the Joint Chiefs of Staff warned that banning affirmative action would “impede our military’s ability to acquire essential entry level leadership attributes.” The American Bar Association, the Association of American Medical Colleges, the National School Boards Association, and a collection of more than 300 basketball coaches chimed in as well. In contrast, the voices speaking against racial discrimination were almost non-existent, outside of Republican lawmakers and a handful of activist groups.
Last year, we profiled the National Minority Supplier Development Council, a little-known non-profit that holds immense power over who succeeds in American life. NMSDC’s power comes from its ability to grant literal race cards — a certification that a company is “minority-owned” because it has an owner who is at least 25% Black, Asian, Hispanic, or American Indian.
Why do you want to be certified as a Minority Business Enterprise (MBE)? Easy: Because right now, in supposedly “white supremacist” America, there are limitless opportunities to receive explicit racial preferences for your business as long as you are not a member of the wrong (i.e. white) race. Hundreds of corporations are on the hunt for “diverse” suppliers to hit diversity quotas, and any business with an MBE certification has permission to join the feeding frenzy.
NMSDC is well aware of this. In fact, they’ve even encouraged members to submit video testimonials about the racial handouts they’ve been able to receive thanks to the company’s certification.
About ten percent of all federal contracts, worth more than $50 billion per year, are set aside for small businesses owned by “disadvantaged” groups. As it happens, “disadvantaged” peoples are:
Black Americans; Hispanic Americans; Native Americans (Alaska Natives, Native Hawaiians, or enrolled members of a Federally or State recognized Indian Tribe); Asian Pacific Americans (persons with origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China (including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Fiji, Tonga, Kiribati, Tuvalu, or Nauru); Subcontinent Asian Americans (persons with origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands or Nepal)
Sheesh, why not just say “No Whiteys Need Apply?” Many of the groups named above, such Indians or Japanese, are among the highest–earning ethnic groups in America, but they still gobble up set-asides as a reward for not being one vile palefaces. White business owners routinely go to prison when they try to nab these racial set-asides for themselves.
These “disadvantaged” contracts (as well as SBA loans for “disadvantaged” businesses) are available to non-citizen U.S. immigrants, by the way, meaning that America has a system where we will literally pluck people out of foreign countries, bring them here, declare them the victims of native white racism, and then bestow money upon them as a reward. Many of the recipients look like this, by the way:
Not only is affirmative action a major part of the official economy, but it has also created an entire shadow world of unwritten laws and unseen weapons. The ability to understand, navigate, and exploit various affirmative action, diversity, and disparate impact rules (written and unwritten) has become a key part of corporate strategy for the top rungs of law, finance, and tech. Not only that, but all of these rules are also weapons to be wielded against enemies. Elon Musk has emerged as a growing threat to the modern regime, and so, like clockwork, California is investigating him for anti-black “discrimination” at Tesla.
Blackrock, the largest asset manager on Earth, is also one of the earth’s most aggressive enforcers of diversity quotas. The company is so committed that it now crafts its credit agreements so that it pays a higher interest rate on its own debt if it misses diversity targets. But Blackrock is not content to police its own house; the $10 trillion-AUM firm wants to spread the gospel worldwide, by force if needed. Reuters:
Top asset manager BlackRock Inc (BLK.N) on Tuesday said it wants U.S. companies to aim for a board that is 30% diverse and, for the first time, contains at least one member from an under-represented group.
The number of U.S. companies disclosing the data likely will keep growing, a BlackRock spokesperson said. According to language sent by the spokesperson, directors from under-represented groups can include racial or ethnic minorities, people who identify as LGBTQ+, people with disabilities and veterans.
BlackRock’s guidelines did not specify when it would vote against directors at companies that did not meet its new standards, but they indicated the focus would be on large companies first. A lack of diversity was a major reason the firm voted against more directors in 2021 than in prior years.
Racial preferences, with blacks at the top and whites at the bottom, aren’t just an accommodation of facts on the ground. Such preferences are a powerful driving force of what America does as a nation. In a pro-affirmative action op-ed for the Washington Post, Harvard econ professor Roland Fryer notes how the biggest winners from racial preferences aren’t the descendants of American slaves, but the descendants of those who sold their ancestors off centuries ago:
Seventy-one percent of Harvard’s Black and Hispanic students come from wealthy backgrounds. A tiny fraction attended underperforming public high schools. First- and second-generation African immigrants, despite constituting only about 10 percent of the U.S. Black population, make up about 41 percent of all Black students in the Ivy League, and Black immigrants are wealthier and better educated than many native-born Black Americans.
This isn’t a case of the system misfiring, or an outside group discovering an unexpected exploit. This is the system working exactly as it must. The ideology of America’s regime desires — nay, demands — blacks in high-status positions, in every industry and every institutions, and all the way to the very top of the hierarchy. America’s industries are perfectly willing to sacrifice merit and quality to hit diversity quotas, but even they have their limits. Even with standards falling by the day, only about 28 percent of black Americans between 25 and 39 have a college degree of any kind, let alone the credentials that gain access to America’s most elite professions. And so, like with any other commodity, the market adapts. America imports thousands of Africans for the same reason it imports copper or cadmium: they are a scarce natural resource, and demand exceeds domestic supply.
Such a system that is so entrenched, all across American life, cannot be torn up with a single 5-4 or 6-3 Supreme Court ruling. It will require a sustained legal and regulatory offensive across America, led by patriotic Americans who reject the lie that it is “racist” to treat all Americans equally regardless of skin color.
Just as desegregation efforts faced “massive resistance” decades ago, today’s academia is already preparing some massive resistance of its own. Dozens of schools have scrapped the SAT as a required test for admissions. Last month, a whole rash of top law schools withdrew from the annual law school rankings of U.S. News and World Report, and an American Bar Association panel voted that schools should no longer require applicants to take the LSAT. All of these shifts serve to deemphasize measurable, quantitative aspects of school admissions, thereby lowering standards and making explicit racial favoritism easier to carry out without a paper trail.
As mentioned earlier, Brown v. Board may have banned school segregation, but it took dozens of federal judges across the country to put that ruling into effect.
A similar network of judges will be needed today. And the conservative legal movement is well positioned to create it. With Roe v. Wade finally overturned, new priorities must be found for future judicial appointments. A firm commitment to opposing all government racial discrimination, and striking it down where it exists, is a worthy litmus test for future Republican judicial appointees. Make Griggs into Roe’s successor as a disastrous Supreme Court precedent whose destruction is a long-term objective. Then, the next time Republicans hold the White House, fill the courts with judges who will gradually make this objective a reality.
Patriots must assist these judges by launching investigations to find racial discrimination where it still exists, and file lawsuits to shut it down. State lawmakers in red states must get in on the action too. If public schools try to phase out standardized tests to make discrimination harder to spot, lawmakers should pass laws forcing the use of objective measures like tests. Wherever bogus diversity apparatchiks exist within state-funded systems, red state governments should abolish or defund them.
The Supreme Court is poised to deliver Americans a great Constitutional victory. But this isn’t a battle. It’s a war.