The Supreme Court finally ended one of the worst failed experiments in American history: affirmative action. Nevertheless, the ruling is likely to mark the beginning of a new era of “shadow” racial balancing and quotas, wherein elite universities like Harvard and woke employers play games to suit their desires for preferences that benefit perceived “marginalized” groups.
From its beginnings in the Civil Rights era, affirmative action has been antithetical to its purported intent of preventing racism in hiring and admission. The policy instead has institutionalized racism against white and Asian Americans, against whom Harvard actively discriminated against in its admissions process. The policy has also hurt the very same groups that it was designed to help by fueling racial resentment against black and Hispanic Americans.
The Supreme Court will almost certainly interpret the post-Civil War Fourteenth Amendment’s “equal protection” provision as barring the use of racial preferences by public colleges and universities and interpret Section VI of the 1964 Civil Rights Act as similarly antithetical to race-conscious admissions at any school receiving federal funds.
Harvard is already trying to subvert the decision by deprioritizing academic success – arguably the most important and quantifiable marker of student achievement. Harvard claims to do admissions by scoring applicants from 1 (best) to 6 (worst) along four dimensions: Academic, Extracurricular, Athletic, and Personal. The scores are then aggregated to provide a first cut of admissions decisions.
What the data suggests, however, is that Harvard is “cheating” on its Academic bucket thresholds. A whopping 42% of applicants get a “2” academically, double the number of those who get a “2” in any other category (24% Extracurricular, 9% Athletic, and 21% Personal).This bucketing allows Harvard to substantially de-emphasize academic ratings in favor of more subjective extracurricular and personal scores, while appearing to treat everyone equally at first glance. So it’s not just that Asian applicants are getting lower personal scores than Black applicants, which has been born out by data — Harvard has constructed a methodology wherein the areas they often excel im (test scores and grades) have less bearing on the admissions outcome. Harvard is able to then claim that applicants get the same Academic scores so that their expert witness’ data analysis can show no “bias.”
The black box of admissions is ripe for manipulation to suit an explicit desire to promote a more “diverse” student body. Harvard, for example, can avoid explicit discrimination by taking every academically qualified student in the same “qualified” bucket and then making admissions decisions on the basis of unquantifiable idiosyncratic factors.
There are a lot of ways to “cheat”: using zip codes to rely on racially segregated housing as a proxy for race, using socio-economic factors to try to increase minority representation, and decreasing emphasis on standardized test scores. Universities and employers have tried many different ways of implementing racial quotas in practice after different states banned affirmative action.
If the intent is to discriminate based on race – as Harvard and many other institutions have signaled that they continue to intend to do, regardless of the ruling of the Supreme Court – covering up that intentional discrimination with a byzantine paper trail, using other terminology, or suddenly pretending to care more or less about other factors, such as underweighting academics, then discrimination will continue in the shadows.
Affirmative action, racial quotas and racialized thinking that has infected our governing class must be rooted out at every level. That takes more than a Supreme Court ruling on the letter of the law. It takes a fundamental change in national mindset. It will take a leader who can remind America that we were a nation founded out of a wholesale rejection of Europe’s stratification of society along class, ethnic, and racial lines. “That all men are created equal” in the Declaration of Independence is a reminder of that promise, even if our nation failed to live up to it for centuries.
While the SCOTUS decision is a good one, there is one big domino that still must fall to end affirmative action entirely. If elected President, I have committed to repealing Lyndon Johnson’s ill-thought Executive Order 11246, which mandates that federal contractors– approximately 20% of the U.S. workforce—adopt race-based hiring preferences. The trickle-down effect of this mandated affirmative action is sweeping. Top companies now regularly disfavor qualified applicants who happen to be white or Asian-American, which spawns resentment and condescension toward black and Hispanic hires. I will rescind this executive order and direct the Justice Department to prosecute illegal race-based preferences.
The Supreme Court provided the legal framework for a post-affirmative action America. This is an encouraging, long overdue ruling. The insidious damage of judgments about individuals made on the basis of the color of skin, rather than the content of their character at the heart of affirmative action over six decades will take years, if not decades, to expunge from American society. That begins with rediscovery of America’s national identity – that embraces merit and excellence and rejects the narratives of race-based victimhood.
Vivek is an American business leader and New York Times bestselling author of Woke, Inc.: Inside Corporate America’s Social Justice Scam, along with his second book, Nation of Victims: Identity Politics, the Death of Merit, and the Path Back to Excellence, and Capitalist Punishment: How Wall Street is Using Your Money to Create a Country You Didn’t Vote For.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.