NAS President Peter Wood Addresses the Pending Racial Preferences Cases

Posted By Ruth King on October 26th, 2022

https://www.nas.org/blogs/article/nas-president-peter-wood-addresses-the-pending-racial-preferences-cases

The following are remarks that NAS president Peter Wood presented at a meeting of “Oasis,” an informal group of academics and intellectuals that periodically gathers at the faculty club at New York University.  Dr. Wood was invited to comment on the pending U.S. Supreme Court case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.  The National Association of Scholars filed an amicus brief in the case on the side of Students for Fair Admissions, Inc., which represents Asian students who argue that Harvard has unlawfully discriminated against them on the basis of race.  

Students for Fair Admissions Inc. v. President & Fellows of Harvard College is scheduled for argument before the U.S. Supreme Court at the end of this month, on Monday the 31st, Halloween. It is a matter of pure coincidence that this month has also brought the release of Halloween Ends, the thirteenth movie in the world’s most commercially successful horror franchise. For those whose filmic education stopped with Ingmar Bergman or Jean-Luc Godard, Halloween tells the tale of the rambunctious Michael Meyers, who likes to murder babysitters on October 31, generally in the town of Haddonfield, Illinois. Babysitter Laurie Strode, played by the actress Jamie Lee Curtis, has a knack for escaping Mr. Meyers’ knife. One or the other or both of them die at the end of the movies, only to spring back to screen life in the next sequel.

I bring this up, of course, because the parallel is uncanny. Here is a story about a terrifying and seemingly unstoppable force that destroys the lives of young people with impunity. It is met with heroic resistance and is seemingly doomed to be defeated once and for all, only to rise again. It is no small matter that Mr. Meyers owes his longevity to state officials who, over and over again, fail to do their duty. He escapes from an insane asylum, the morgue, incineration, and numerous other seemingly terminal destinations. Racial preferences in college admissions owe their longevity to Justice Sandra Day O’Connor, but of course not just her.

I am among those that hope and expect that racial preferences in higher education will end, if not on Halloween proper, at some point in our lifetimes. If next June the Supreme Court rules for the plaintiffs in Students for Fair Admissions, of course, that decision will not mean an end to racial preferences anytime soon. But it will be a significant step in the right direction, and it will help those of us who seek to bring more and more pressure on colleges and universities to finish for once and all the Meyers-esque career of racial preferences.

My NAS colleague Gail Heriot has recently observed how unlikely it is that the Court’s decision alone will bring an end to racially discriminatory practices in higher education. Many university officials, as she puts it, see “their support for discriminatory standards to be a sacred duty.” If faced with the Court knocking down its previous permission to engage in racial preferencing, they will either defy the law or invent new subterfuges. Heriot argues that the next steps will be to eliminate the accreditation standards that provide cover for racial discrimination and to repeal the “massive government subsidies” for so-called “minority serving institutions.” These are estimable ideas, and they belong in the burgeoning category of legislative proposals aimed at defanging the rattlesnakes of the DEI regime.

NAS in the last year has put forward 48 model bills for state legislatures aimed at curtailing practices that are essential to that regime and has proposed more than a dozen pieces of federal legislation. We have also worked to defeat proposed legislation that would reinforce the DEI regime, most notably the woefully misnamed “Civics Secures Democracy Act,” which might better be termed “The 1619: America Is Systemically Racist Act.” And we have formed partnerships with more than two dozen other organizations to advance these proposals at the state and federal levels.

All this is to say that my attention has long since turned away from the Supreme Court’s deliberations to what can be done elsewhere. In my remarks this evening, I’ll have a little bit to say about the case proper, but mostly I’d like to talk about the cultural context. After all, I’m an anthropologist, not an attorney or a legal theorist.

While I will, I promise, have something to say about Students for Fair Admissions Inc. v. President & Fellows of Harvard College, I should warn that I have very limited interest in the tortured logic and word games that have gone into the creation of the diversity regime. As far as the law goes, diversity is the product of cynical jurists who have attempted time and time again to evade the plain meaning of the Fourteenth and Fifteenth Amendments and Title VI of the Civil Rights Act of 1964. It may be a bit ritualistic to repeat what these documents actually say, but we cannot really talk about the Harvard and UNC cases without keeping these words in mind.

There are important differences between the two amendments and the 1964 law. The former explicitly address actions by the state; the latter is explicitly much broader, limited only to entities that receive federal financial assistance. Because Harvard is not a state—even if it sometimes thinks it is—and because it indeed receives federal financial assistance, Title VI appears more pertinent to Students for Fair Admissions, which is a matter I will return to later.

I used the word “cynical” a few moments ago in reference to the jurists who have evaded the plain meaning of our laws. Is that fair? Is it helpful to impugn their motives? Plainly not if you are writing a friend of the court brief. Friends do not call friends “cynical.” Even if they are. But in the privacy of the Torch Club and among friends in Oasis, I’d like to ponder this for a moment. Is it anything but cynical gamesmanship to discover ways to interpret these laws in manner that authorizes racial discrimination?

Perhaps it is. “Cynical gamesmanship” characterizes the attitudes of the jurists as essentially frivolous, and we know that many of the jurists involved take the racial questions involved as dead serious. They fear that if we as a nation fail to make provision for blacks and members of other minority groups who persistently fail to meet competitive admissions standards in selective colleges and universities, we will suffer terrible consequences. It is to avoid those consequences that some of our distinguished jurists have thrown in the towel and said, in effect, “If conjuring up some excuse for racial preferences is what it takes to avoid riots or what is needed to end black poverty and immiseration, count me in.” That’s not cynicism per se. It may be a kind of cowardice. It may be historically short-sighted. It involves a lot of rationalization where one might instead hope for clear-eyed jurisprudence. But, no, it is not exactly cynical.

It just assumes the worst of a large segment of the American public. It assumes that blacks cannot now and may not ever be able to compete at the same intellectual level as other ethnic groups. And it assumes that the consequences of failing to dumb down academic standards at elite and semi-elite colleges and universities would manifest themselves in social disruption and perhaps riots. Or, if not those outcomes, something like a vast demoralization of an already psychologically frail community.

This view is something I postulate, not something that I can show by citing the words of particular Supreme Court justices, though I have heard it expressed by many educated people, including attorneys. For sake of keeping things straight, I will assign this view to someone I’ll call Justice Prag Matic. Justice Matic has co-signed opinions with other justices who endorse racial preferences in college admissions on quite different grounds that are not cynical at all.

I’ll call the exemplar of this other view Justice Pro Gressive. This Justice upholds the view that America remains mired in racism, that the legacy of slavery is apparent in the continuing social and economic disparities of the races, and that the laws passed to end racial discrimination are rightly understood as one-way streets. “Real” discrimination is discrimination against minorities oppressed by whites; “racism” is rightly understood as racial discrimination by powerful whites and white-dominated institutions against relatively powerless blacks. And “social justice” calls for reparations against this white regime. Racial preferences in college admissions is just one form of the long-overdue reparations that are needed. Pro Gressive is not hindered by what the laws say. Those laws were written by white men for the benefit of white people. A system of “justice,” as opposed to a straitjacket of unjust and outmoded rules, requires a more imaginative approach to deploying the authority of the nation’s highest court.

Prag Matic and Pro Gressive have made common cause in creating the diversity regime in American higher education. They have more or less had their way since 1978, when a fractured court handed down the Bakke decision, in which Justice Lewis Powell enunciated the sine qua non of Supreme Court pragmatism, the diversity concept. It was a misshapen cornerstone and the edifice that was built from it has all the elegance of a stack of discarded automobiles in a junk yard. With any luck, the current Court will pick up that stack with its giant magnet and drop it into the crusher.

I know the Supreme Court doesn’t work exactly like that. It likes to maintain the pretense that previous Courts acted with some degree of integrity. Make-believe is important in life, even in our most sober institutions. This time we believe the babysitter will finish off Michael Meyers once and for all.

In truth, Americans will still be debating what to do about racial disparities fifty or a hundred years from now. The terms of the debate will evolve, but I see no signs that the underlying disparities will disappear or the political opportunities to exploit those disparities will vanish. Ideally the disparities will diminish, but that will require defeating the efforts of those who work tirelessly to increase racial division. That is the main project of many on the political left, who have embraced the 1619 Project, Critical Race Theory, and so-called Anti-Racism. Right now the worldview embodied in these terms is being taught in nearly every public school and most private schools in the country. If the plaintiffs prevail in Students for Fair Admissions, it may slow the advance of this concerted effort to harness the fury of racial resentment and the guilt and intimidation that follow, but the effort will certainly continue. The best we can do is limit the harms and create incentives for national unity.

But let me pay a little more attention to the law that the Supreme Court will be, in principle, trying to apply. For more than 40 years, the cousins of Prag Matic and Pro Gressive have been willing to evade the letter of the law, or twist it beyond recognition, because they believed the moral and political stakes were so high that they needed to find some ostensibly legal path to maintain racial preferences. It is the insistence that there be a legal path that opens the floodgates to such nonsense as “holistic assessment,” “critical masses,” and “lawful race-conscious admissions,” as the Court put it in its 2016 decision in Fisher v. University of Texas. The majority opinion in that case, drafted by Justice Kennedy, drew from the previous Fisher case (2013) where the Court opined, “The compelling interest that justifies the consideration of race in college admissions is not an interest in enrolling a certain number of minority students, but an interest in obtaining ‘the educational benefits that flow from student body diversity.’”

Delivered in sufficiently august tones, such a pronouncement might not sound like “cynical gamesmanship,” and perhaps it lays a claim to moral urgency: it is a “compelling interest.” “Compelling interest” is one of two prongs of the “strict scrutiny” test that the Court has long held to be the standard for allowing considerations of race to override the constitutional prohibition. The other prong is that this consideration of race be “narrowly tailored” to achieve the supposed good that compels the exception.

What makes diversity a “compelling interest?” The answer is far from self-evident, and the question has driven a lot of parties to find a persuasive answer. Back when the Supreme Court was gearing up to decide the Michigan cases, Gratz and Grutter, in 2003, the University of Michigan delivered a study known as the Gurin Report that claimed to show that racial diversity in a class enhances students’ ability to think critically and prepares them “to become active participants in our pluralistic, democratic society.” Most diversity apologists to this day say something similar. There is no real evidence that either claim is true, but even if both claims were as well planted as Grant’s Tomb, it is hard to see in them a “compelling interest” sufficient to override the prohibition in Title VI of the Civil Rights Act.

One of the amici supporting Harvard in Students for Fair Admissions is “Major American Business Enterprises,” an alliance of 69 major corporations ranging from Accenture to Zazzle with stops on the way at Airbnb, Apple, Biogen, Dell, General Dynamics, Hershey, Intel, Merck, Meta, Procter & Gamble, Salesforce, Starbucks, Uber, and Walgreens. This is corporate America assembling to tell the Supreme Court that “diversity” hiring is essential for business and that they can’t get that job done unless American colleges and universities are free to engage in racial discrimination. That’s a pretty close paraphrase of the brief. More exactly, “Diverse workforces improve Amici’s business performance—and thus strengthen the American and global economies. Amici seek employees who have been educated at universities with exposure to a broad array of life experiences and viewpoints, and who can bring diverse perspectives and experiences to the workplace.”

Alas. What would Uber do if it couldn’t find Harvard-educated African Americans? Or Harvard-educated white Americans who have been exposed to “a broad array of life experiences and viewpoints”?

The “Major American Business Enterprises” brief was written no doubt by some of America’s best corporate attorneys, and they did their research. While my 2003 book Diversity: The Invention of a Concept, strangely enough, is not cited, the Gurin report is, along with a great many other classics of the diversity apologetics genre. Gurin is cited to prop up the claim that “Students Trained in Diverse University Environments Gain the Skills Needed to Lead in Today’s Global Marketplace.”

I don’t think we need to pause long on this idea. Are graduates of American universities, including Harvard, leading in today’s global marketplace? If so, is it because Harvard discriminates against highly qualified Asian students in favor of less qualified black students? If the mind does not exactly reel at this argument, it at least sits down by the stream of logic and evidence and takes a long nap.

The rest of the brief is no better. But the point, of course, is not what the brief says in its 31 pages of text. The point is Appendix A, that two-page list of corporations at the end. The Supreme Court is on notice that the American corporate establishment is on the side of genteel racial discrimination because it assists the companies in hiring presentable black-face employees whose presence means a lot to customers and to the consciences of woke capitalists.

These games, beginning with Justice Powell’s imaginative invention of “diversity” as a circuitous rationalization for racial preferences, have done incalculable harm to our nation. I have written one long and one short book on the topic and many articles. And I don’t relish re-engaging people who pretend that “diversity” is a serious and weighty legal concept. It has all the weight of a cement-filled tire hung around the body of an out-of-luck gangster about to be dropped off the Jersey shore. Justice Sandra Day O’Connor helped pour the cement. The American public plays the role of Unlucky Louie on his way to the Atlantic depths.

Can we fix this? We could decide “no more cement, no more tires.” But that’s of no help to Louie. The damage to the republic has already been done. The consequences are all around us, and undoing those consequences will be the work of generations, if it can be done at all. That damage includes the ruination of much of American higher education. So much for my preview. Let’s go back to the movies.

Comparing racial preferences to the anti-hero of slasher movies may seem a little excessive. After all, racial preferences do not literally kill people. Perhaps it would be wise to say explicitly what they do kill. That list would include academic standards, incentives, aspiration, fairness, integrity, trust, and respect for the rule of law. But maybe I was a little hasty in saying that racial preference do not literally kill people. My organization has recently begun to examine how the diversity, equity, and inclusion regime has gained a substantial foothold in medical schools. A group called “White Coats for Black Lives” has spent a decade attempting, with increasing success, to “dismantle dominant, exploitative systems in the United States which are largely reliant in anti-Black racism, colonialism, cisheteropatriarchy, white supremacy, and capitalism and rebuild … a future that supports the health and well-being of marginalized communities.” Those are the words of “White Coats for Black Lives,” but they are not all that far from the recent declaration of the Association of American Medical Colleges, which has released a set of “Diversity, Equity, and Inclusion Competencies” that will establish additional standards for medical schools across the country.

A fair number of observers have noted that these steps amount to lowering educational standards in order to accommodate demands for more access to the medical profession by individuals who fail to meet traditional standards. If we were waiting for evidence that this is more than a hypothesis put forward to reinforce racist, colonialist, cisheteropatriarchical privilege, wait no more. New York University has jumped right in by non-reappointing professor Maitland Jones because some students complained that he graded too hard in his med school gateway organic chemistry course. As Alan Dershowitz put in an article a few days ago, “It is not surprising that universities will have to lower academic standards for performance if they lower academic standards for admission.” He added that it “will be obvious in courses like organic chemistry where identity politics play no role in grading.”

When racial preferences are routine in undergraduate admissions, that reverberates through the curriculum, into graduate studies, and eventually into professional qualifications and competence. So those preferences may well cost lives. They did so right from the beginning. The student who was admitted to the medical school at the University of California Davis in the place of the much more highly qualified Allan Bakke was named Patrick Chavis. His license to practice was suspended in 1997 by the Medical Board of California, which cited his “inability to perform some of the most basic duties required of a physician” and noted his “gross negligence” in treating three patients. Those cases involved botched liposuctions, and one of the patients, Tammaria Cotton—say her name—died. Another, Yolanda Mukhalian, lost 70 percent of her blood but survived.

This is, of course, not the routine and inevitable result of racial preferences, but it exemplifies the danger of lowering standards in fields where very high thresholds of competence once prevailed. I have thought about the Chavis case for many years. Chavis died in 2002, according to official accounts, shot to death when three men tried to carjack him after he bought an ice cream cone. There were rumors that the shooting involved other motives, but nothing was proved. By the time Chavis lost his license, he had been sued for malpractice 21 times.

This is to say that Chavis’ technical incompetence as a physician was not the whole story. There is something here about moral competence as well. Seeking unearned advantage is a human fault, not a racial characteristic, but a system built on conferring unearned advantages is corrupting. Recognition of that blight is what gives force to the accusation that white people enjoy “white privilege.” As much as CRT theorists like to put the blame on “systems” and social structures, rather than individuals, the force of the criticism is that white people, though they may be oblivious to their advantages, have been morally tainted by those advantages.

It is possibly so. None of us are entirely innocent. But I raise the point to draw attention to the lurking point that racial preferences as a form of unearned privilege are also corrosive to their supposed beneficiaries. Chavis’ descent from celebrated exemplar of the success of affirmative action med school admissions, who “gave back” to the South Central community, to what he eventually became, a medical hack who butchered black women in reckless medical procedures, traces the sorry tale of a man who grew too used to his privileges and immunities. There are certainly worse instances, but Chavis is an extreme case in which one of the latent dangers of racial preferencing became conspicuous.

Even so, the question of moral competence hovers over the racial preference regime alongside technical competence. The Supreme Court is not asked to consider either of these concerns, and it hard to see how they could be reached as a matter of law. But as I said, I am less interested in law than I am in culture, and these concerns loom large in that domain. They loom large for the public, regardless of race. No one wants an incompetent physician or airplane pilot, and no one wants to deal with people of questionable character. Not even thieves. As Nobel laureate Bob Dylan has taught us, “To live outside the law you must be honest.”

There is something reckless about dispensing unearned privileges, and in case anyone wants to ask, I apply that to legacy admissions as well. Racial preferences are worse because they intensify racial animosity, but legacy admissions have untoward consequences as well.

As for Students for Fair Admissions Inc. v. President & Fellows of Harvard College, I would like to offer a handful of observations. Jonathan Mitchell wrote an amicus brief for the America First Legal Foundation that is as limpid and powerful as anything I’ve seen on the subject. He writes:

The language of Title VI makes no allowance for racial considerations in university admissions. It prohibits all forms of racial discrimination at universities that accept federal funds, with no exceptions for “compelling interests,” “diversity,” or “strict scrutiny.” Harvard is indisputably violating this statutory command by using racial considerations in its undergraduate admissions. And the Court must enforce the statute as written and demand that Harvard stop using racial preferences or forgo federal funds.

Mitchell also draws attention to an odd part of Harvard’s own brief in the case—at least it was odd to me. Harvard’s position is—I paraphrase—”Sure we discriminate against Asians and whites in favor of blacks and other minorities. We do that because we want to and because nothing in the Constitution says we can’t. The Equal Protection clause of the Fourteenth Amendment doesn’t apply to us because it deals with laws passed by the state. We aren’t the state. We’re Harvard. So we are exempt. Oh, and the Civil Rights Act of 1964? It is just a congressional restatement of the Equal Protection Clause, and we have already shown that doesn’t apply to us.”

Points for brazenness. Harvard essentially says, “Buzz off with your laws and jurisprudence. We make our own.” Jonathan Mitchell’s answer is to draw a sharp line between the Fourteenth Amendment and the Civil Rights Act and to urge that the latter is not merely a restatement of the Amendment but its own distinct statute that, unlike the Fourteenth Amendment, most definitely does apply to Harvard. Per Mitchell:

There is no conceivable way that Harvard’s “race-conscious admissions”—or any other university admissions program that considers an applicant’s race—can be squared with this statutory language. Harvard openly acknowledges that it uses race as a factor in its undergraduate admissions decisions, and it does so with the conscious aim of increasing black and Hispanic student enrollment at the expense of Asians and whites. That means that applicants to Harvard College are being “subjected to discrimination” “on the ground of race.”

Harvard has another cute argument up its sleeve as to why Title VI shouldn’t apply. It argues that the Supreme Court in the past has ignored the statutory text, and Congress hasn’t stepped in to reject those earlier Supreme Court decisions, so Harvard must be on good grounds to assume that Title VI doesn’t apply. A kind of jury nullification has settled in place. The law has been ignored before, so let’s go on ignoring it. This is an attempt to use the idea of judicial precedent as grounds for the de facto appeal of a law that, in fact, has never been overturned. Mitchell doubts that the Supreme Court will buy this bit of bluster. I trust he is right.

My organization also filed an amicus brief in the case. We made three points. First, contrary to the arguments that racial preferences enhance interracial understanding—which is one of the “compelling interest” claims—the preference regime has led to new forms of segregation and inter-group hostility. In practice, the pursuit of “diversity” has “largely benefited middle and upper middle class minority students,” while encouraging them to separate themselves out from other students by race.

Neo-segregation, as we call it, was described in detail in the book my colleague Dion Pierre and I published in 2019, Neo-Segregation at Yale. Neo-segregation began to take shape in the 1960s, as preferentially admitted black students rebelled against the hardship of being conspicuously less qualified than their white classmates. The diversity regime didn’t really take off until twenty years later, but it provided a general rationalization for what was already a fact. Preferentially admitted minority students were minimally engaged in advancing “our pluralistic, democratic society” or helping all students think more “critically.” They were instead creating trip wires for anyone who might disagree with their demands or criticize their tactics. What does diversity on campus really look like? Recall the video of a mostly black mob surrounding, berating, and threatening Professor Nicholas Christakis in 2017 after his wife had sent a memo saying that Yale students should feel free to pick their own Halloween costumes. Diversity is, in large part, a power play that authorizes minority students to undermine the curriculum, the authority of faculty, and the civil order of university communities.

Is Harvard better than Yale on this scale? I don’t know. But again, I think the moral dynamics of racial preferences are even more important than the legal considerations, though we need the legal rulings to reach the higher principles.

The NAS brief presents two other arguments. We urge the Court to overrule Grutter “because the burden of race-conscious admissions now falls largely on Asian-Americans, another historically victimized racial minority group.” This is, of course, not just a Harvard phenomenon but something that has been attested at virtually all competitive colleges and universities and, here in New York City, in our exam schools as well. I take it that this portion of the Supreme Court case is sufficiently well known that I need not elaborate.

The third argument in the NAS brief may be less familiar. We argue that “the District Court erred in rejecting historical evidence that Harvard’s ‘holistic’ admissions policies were instituted to exclude Jews who were stereotyped in much the same way as Asians are today.” Essentially, “holistic review” is camouflage for prejudice or for decisions based on considerations that could not withstand public exposure. The “holistic review,” shamefully endorsed by Justice O’Connor in Grutter, needs to be brought down. I think it likely that, if the Court decides on behalf of the plaintiffs in Students for Fair Admissions Inc., it will get there without having to walk back through the tunnel of “holistic review,” but it is nice to have gotten our two cents into the record on that one.

Back in 2003, just after the Grutter decision was handed down, I wrote a short essay on National Review Online, which to my surprise has recently resurfaced and is being passed around. It was titled “Critical Masses,” and it took up the strange coincidence that the “critical mass” of minority students that the Court deemed a compelling interest for the University of Michigan Law School varied in size according to the minority group and remained fixed for that group for years on end.

A critical mass of African Americans in this period was about 100 students; for Hispanics, a critical mass was about 50 students; and for Native Americans, it was about 15 students. Some grizzled skeptics argued that looked a lot like “quotas.” But O’Connor, Stevens, Souter, Ginsburg, and Breyer determined that the ratio of 100:50:15 had nothing to do with an attempt to reflect the proportions of the general population that fit into those categories. No, it was all, just as the Law School claimed, about achieving “critical mass” for each minority group. I facetiously suggested that different ethnic groups apparently have different psychological thresholds for group solidarity. Native Americans could feel sufficiently massed when they comprised 1.2% of the Law School’s student population, but African Americans didn’t reach critical mass until they were twelve percent of the student body.

When I think that, twenty years later, we are still playing these games with college admissions, my heart sinks. No student should be judged eligible or ineligible for admission to college or a graduate program on the basis of race or ethnicity. That doesn’t mean that we should admit students solely on the basis of grades and test scores. Humans are complex, and our skills are not easily mapped on to a single or a simple grid. Something calls out for good judgment, not mechanical assessment. But as soon as we admit the role of judgment and broader-based assessment, we approach the risk of administrators inserting their own racial and ethnic loyalties, likes, and dislikes and their own determination to rectify American history or enact their views of social justice.

Is it better to rely on a mechanical admissions system or to trust the admissions folk who have proved over and over to subvert our civil rights laws and our spirit of treating one another as individuals? It’s a dilemma for some. I would prefer a wise and temperate form of meritocracy that has room for the French Horn player who didn’t score so well on the SAT and the math genius whose skills in English composition are subpar. But whatever takes the place of the racial preference regime, we need to approach the matter with caution. When the doorbell rings on Halloween, the babysitter should think twice before answering.

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