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March 9, 2023

Are Affirmative Action’s Days Numbered?

In June, the Supreme Court will rule on our nation’s unconstitutional practice of race-based discrimination in higher-ed admissions.

“Poverty and huge intergroup differences in income are serious matters,” wrote the great Thomas Sowell, “whether or not discrimination is the cause, and whether or not affirmative action is the cure. Yet any attempt to deal with these very real disadvantages must first cut through the fog generated by a vision more powerful than its evidence.”

Sowell wrote that in his smallish 1984 book Civil Rights: Rhetoric or Reality? marking the 20th anniversary of the passage of our nation’s landmark Civil Rights Act. Nearly 30 more years later, affirmative action may finally be ready for the ash heap of history.

Last October, the Supreme Court heard oral arguments in Students for Fair Admissions v. Harvard College and SFFA v. University of North Carolina, both of which challenge the racially discriminatory admissions practices of their respective schools.

How bad has it gotten? One statistical analysis from the North Carolina case noted that an out-of-state Asian American has only a 6.5% chance of admission compared to 57.7% for an equally credentialed black. Another analysis found that a white out-of-state male with a 10% chance of admission would have his odds improve to 98% if he were black.

Whatever one thinks about affirmative action, this much is undeniable: It’s one of the most effective euphemisms ever devised. If you disagree, try to come up with a sweeter sounding way to say “race-based discrimination.”

We’ll wait.

As Jason Riley, Sowell’s biographer, writes in City Journal:

It’s true that some polls over the years have shown support for “affirmative action,” but this typically reflects artful wording of the question or not defining the term in any detail. In a 2013 New York Times survey, for example, 53 percent of respondents favored “affirmative action programs for minorities in college admissions and hiring,” but the story immediately added that “other surveys that frame the question in terms of giving minorities ‘preference’ find less support.” Which is to say that the more accurately you describe “affirmative action” as it is practiced, the worse it polls.

This politically charged term entered the American lexicon in 1961, when, in John F. Kennedy’s Executive Order 10925, he called on government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.”

Without regard. Thus, the affirmative action of 1961 has been turned completely on its head. For decades now, these discriminatory policies have taken from one group and given to another.

So: Is the Supreme Court finally committed to colorblindness? Finally committed to striking down the age-old scourge of racial discrimination? Finally committed to insisting that Americans are to be judged, as Dr. Martin Luther King dreamed, not by the color of their skin but by the content of their character?

As Riley writes: “The Supreme Court’s job in the Harvard and University of North Carolina cases is to determine the constitutionality of race-conscious admissions. That shouldn’t be a hard call if the words of the Constitution and Civil Rights Act of 1964 mean what they say. Affirmative-action policies may have been well-intentioned, but intentions matter less than results. In practice, racial preferences have proved unpopular, polarizing — and ineffective, to boot. It’s time to end them.”

Fifteen years ago, this nation elected a young, charismatic, and woefully inexperienced mixed-race president — the son of a white mother and a black father. That man’s middle name was “Hussein,” no less, and his voting record made him the most liberal member of the U.S. Senate. Four years after that, we reelected him. If ever a nation’s actions had proven that it no longer needed to exercise government-sanctioned race-based discrimination, this was it.

When, in 1978, the Supreme Court upheld a “limited” (read: unlimited) version of affirmative action in Regents of the University of California v. Bakke, liberal Justice Harry Blackmun — who’d written the High Court’s worst-ever majority opinion in Roe v. Wade five years earlier — wrote, “In order to get beyond racism, we must first take account of race.”

How wrong he was.

That our leftist colleges and universities still feel a need to discriminate against certain races in their admissions processes is an un-American, anti-constitutional disgrace. It’s long past time to reject Justice Blackmun’s bad advice and make good on what Chief Justice John Roberts said 16 years ago in his plurality opinion in Parents Involved in Community Schools v. Seattle School District No. 1: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Let’s hope that one day late in June, the Supreme Court finally gets it right.

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