I admire the United States with a passion that I sometimes find scary. I like almost everything about it: the optimism, the impatience, the drive-thrus, the record of beating fascists and commies, the Constitution (it would be even better if you followed it), the anarchic TV, the prim newspapers, the largeness of spirit.
But there is one thing I will never understand, and that is the toleration — no, the celebration — of racial bias in universities. It seems so utterly against everything America is supposed to stand for.
THE SUPREME COURT HAS UPHELD RACIAL PREFERENCES BEFORE. BUT THIS TIME IS DIFFERENT
The extraordinary thing about the Harvard case, and related lawsuits over racist admissions policies, is that they had to be brought at all. The law, after all, is unambiguous. Here is what the 1964 Civil Rights Act says:
“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.”
That statute made explicit what was implicit from the conception of the republic, namely that adult citizens are equal before the law, and that claims of caste, title, or ancestry hold no force.
True, it took the better part of two centuries for America to realize that ideal. Many of the founders were tortured by the gap between theory and practice. They consoled themselves with the thought that their compromises would lead to slavery dying out naturally within a few years. The idea that a terrible war would have to be fought first (a war, by the way, in which Harvard played a brave part) and that, even then, another hundred years would pass before the last cases of state-mandated racism were eradicated, would have astonished them.
Still, America got there in the end, as it usually does. For perhaps a decade after the passing of the Civil Rights Act, there was genuinely liberal polity, in which people were judged as individuals rather than as members of groups. But it did not last. By the late ’70s, state and federal programs were again discriminating on grounds of race.
Supporters of such discrimination believed it was qualitatively different from what had gone before. Affirmative action was presented as the polar opposite to Jim Crow, as anti-racism. But the distinction doesn’t work. Either you assess people on their own merits or you don’t. What is called “positive discrimination” must, by definition, involve an equal amount of negative discrimination. The only question is “negative for whom?”
In the 1930s, many authoritarian European regimes operated a racist university admissions policy known as “numerus clausus,” meaning limiting the numbers from particular ethnicities. The justification they deployed is telling, namely that they were helping historically underrepresented groups.
Which groups? Why, non-Jews of course! German, Polish, and Hungarian quota enthusiasts argued that, since they still allowed more places for Jewish students than strict proportionality merited, it was not discrimination at all. Jews were, of course, measured only against the general population, not the educated urban population, let alone the number of qualified applicants. Like today’s Asian Americans, they were penalized individually in the name of group equity.
On this occasion, the letter of the law chimes with public sentiment. Most understand the difference between immediate restitution to victims of government policy — compensating former slaves, for example — and a policy that defines people permanently by physiognomy. Seventy-four percent in the U.S. believe race should not be considered in admissions.
So, why does the policy persist? The answer, until now, has been that lawmakers ignored public opinion and judges ignored the law. Indeed, some judges seem to be poor lawyers. Reading accounts of the case against the University of North Carolina, I was shocked to hear that Justice Sonia Sotomayor kept saying “de jure” when she meant “de facto” — not as a slip of the tongue, either. When another judge asked her if she really meant, as she had claimed, that there was “de jure segregation,” she crossly replied:
“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.”
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It can be sobering to see the most powerful jurists in the world up close. Indeed, I suspect the real reason the case has come only now is that, for the first time, there is a chance that the court will rule on the basis of what the law says rather than what it would like the law to say.
It can’t happen soon enough. The answer to racism cannot be more racism.
