Racial Discrimination and Harvard’s Invidious Boxes Not only preferences but the categories that colleges use are unconstitutional.By William McGurn
Remember the liberal outrage over Sen. Jesse Helms’s “Hands” ad in his 1990 Senate campaign against Harvey Gantt? Some credit the ad for Helms’s come-from-behind victory.
The 30-second spot featured the white hands of a frustrated job applicant crumpling a rejection letter. “You needed that job,” the narrator says, “and you were the best qualified. But they had to give it to a minority because of a racial quota. Is that really fair?”
The ad said Mr. Gantt, who is African-American, favored racial quotas. It was politics at its rawest, and Mr. Gantt accused Helms of trying “to divide people along the lines of race.” He denied he favored quotas.
Cut to 2022. The Minneapolis Public Schools have negotiated a contract with the teachers union that includes this language: “If excessing a teacher who is a member of a population underrepresented among licensed teachers in the site, the District shall excess the next least senior teacher, who is not a member of an underrepresented population.” In plain English, Deroy Murdock writes in the Daily Mail, it means “fire Whitey first.”
The Minneapolis contract is ugly stuff, but highly apposite as the Supreme Court prepares to hear lawsuits in October by Students for Fair Admissions accusing Harvard and the University of North Carolina of racial discrimination in admissions. In 1990, Helms’s ad was denounced as false and incendiary. These days the discrimination it highlighted is fast becoming standard practice, and not only in Minneapolis and at UNC or Harvard.
Such discrimination was easier to rationalize, both practically and morally, when the issue was literally black and white. The idea was that the new race preferences—in college admissions, hiring and contracts—were a long overdue leveling of the racial scales. The Minneapolis district claims it is only trying to “remedy the continuing effects of past discrimination.”
But America today is no longer so neatly divided between black and white, or even between the white majority and all minorities. Asian-Americans are an even bigger target than whites because their high achievement leads them, on the liberal scale, to be “overrepresented.” This achievement is an embarrassment for the progressive narrative, so much so that they are often lumped in with whites or classified as “white adjacent” to avoid acknowledging that Asian-Americans are a minority—with their own experience of officially sanctioned bigotry (e.g., the internment camps for Japanese-Americans during the World War II and the Chinese Exclusion Act of 1882).
Unfortunately, in Grutter v. Bollinger (2003), the court declared that colleges’ use of race to further diversity was constitutional. In her majority opinion, Justice Sandra Day O’Connor implied this would be temporary. She couldn’t imagine affirmative action would still be necessary in 25 years. After retiring, she said that might have been an underestimate.
The Harvard and North Carolina cases now give the court the opportunity to rid the country once and for all of an unfair practice that leaves only a heightened sense of resentment in its wake. Were the Roberts court simply to declare that race preferences violate both Title VI of the Civil Rights Act and the 14th Amendment, it would be a tremendous victory for a colorblind America.
Even so, one of the more persuasive friend-of-the-court briefs argues that such a decision would still leave unfinished business. Filed by David Bernstein of George Mason University’s Antonin Scalia Law School, it suggests that not only are racial preferences arbitrary, unfair and unconstitutional, so are the racial boxes the schools use to classify students.
Take “Asian,” a label that covers 60% of the world’s population—lumping Indians with Chinese and Cambodians and Koreans. They have almost nothing in common, from religion to language to culture.
Same with “Hispanic.” Harvard and UNC, Mr. Bernstein writes, can’t “explain why white Europeans from Spain, people of indigenous Mexican descent, people of Afro-Cuban descent, and South and Central Americans who may be any combination of European, African, and indigenous by descent are grouped together as ‘Hispanic.’ ”
In addition, because this is largely self-reported, the incentive is for fraudulent or exaggerated claims. A few years ago, Vijay Chokal-Ingam—elder brother of “The Office” star Mindy Kaling—didn’t think he had the grades to get into medical school as an Indian-American. So he checked the box on the application for African-American—and, hey presto, found himself accepted at St. Louis University’s med school. More famously, Elizabeth Warren had to apologize for identifying as a Native American.
It’s probably too much to expect the justices to note how poisonous and unscientific our racial boxes are while throwing out Grutter. But is it too much to hope that a student could fill out a college application without worrying that his grades and hard work might all be for naught if he checks the wrong racial box?
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