13.07.2023

Ben Shahn ‘The passion of Sacco and Vanzetti (1932)

Skin colour or social class?

Liberal anti-racism inevitably engenders racism. Affirmative action is collapsing under the weight of its own internal contradictions, argues Daniel Lazare

Did the US Supreme Court kill affirmative action? Or did half a century of phony anti-racism merely collapse under the weight of its own internal contradictions?

Two weeks after the court issued its epic ruling in ‘Students for Fair Admissions v Harvard’, it is looking more and more like the latter. Top Democrats issued the usual protests once the decision was released. Joe Biden slammed the court for not appreciating the importance of racial diversity, which, among other things, has made “the United States military the finest fighting force in the history of the world.” Vice-president Kamala Harris expressed “deep disappointment”, while Barack Obama tweeted a list of minority scholarship funds to contribute to, now that the court has decided that it is unconstitutional to give minorities a leg up in university admissions solely on the basis of race.

Michelle Obama - so popular among liberals that she is regularly touted as a presidential candidate in 2024 - was particularly passionate: “So often we just accept that money, power and privilege are perfectly justifiable forms of affirmative action,” she said, “while kids growing up like I did are expected to compete when the ground is anything but level.” But Obama’s rage at the money power would have been more convincing if it did not turn out that she was on vacation at that moment on a luxury yacht.

Affirmative action indeed gave Michelle Obama’s career a boost, while her husband’s lucrative book contracts, movie deals and speaking fees have completed the process of propelling her to America’s top ranks. But this is a society in which minorities are losing ground and the top one percent holds a dozen times more wealth than the bottom 50% combined.

Pro-forma as such protests might have been, they died away to near zero, once a poll reported that Americans approved of the Supreme Court decision by a stunning 20-point margin and that blacks supported it by 44% to 36%.¹ Even affirmative action’s purported beneficiaries do not like it, which is why liberals, aware that affirmative action is political poison, now wish that everyone would forget about a policy that they spent decades promoting.

But Republicans will not let them, and socialists should not either. The problem with affirmative action is simple: it is an attempt to impose equality on elite institutions, whose raison d’être is to promote the opposite. Despite their ongoing racism, it gives them carte blanche to pit racial minorities against one another in ways that reinforce their position at the apex of class society.

In reality, black household wealth is lower relative to whites than it was in the 1960s, while black employment lags 22% behind the US rate as a whole. If the purpose of affirmative action is to provide a boost for those still suffering the after-effects of slavery, it plainly is not working.

Absurd

The results are absurd in a way that only American political discourse can be - a fact that came through loud and clear in the flurry of opinions that have accompanied the Students for Fair Admissions decision. Take Clarence Thomas - the ultra-right Supreme Court justice who is at the top of every liberal’s hate list. Born in 1948, he is an ex-radical who once hung a poster of Malcolm X in his dorm room and who took part in the 1970 Harvard Square riots against the Vietnam war. But he started ‘going right’ after reading Thomas Sowell - a black Marxist-turned-conservative, who was emerging as a leading affirmative-action critic. A judicial opinion striking down race-based admission policies is clearly something Thomas has been aching to write for years.

The results are not bad. He is an excellent prose stylist whose opinion deftly dispatches one racial shibboleth after another. Noting that affirmative action is supposed to promote “diversity” - one of those elusive concepts that no-one can define, but everyone knows when they see it - he points out that white students from rural Appalachia and a wealthy San Francisco suburb “may well have more diverse outlooks ... than two students from Manhattan’s Upper East Side ... one of whom is white and the other of whom is black”. Yet affirmative action, with its concept of race über alles, recognises one kind of diversity and not another.

He points out that today’s elaborate admissions process, which students spend years preparing for, only began in the 1920s, when Harvard discovered to its dismay that ‘too many Jews’ were passing what at the time was a simple and straightforward entrance exam. So Harvard decided that comportment, leadership, civic activities, etc - areas in which Jews supposedly fell short - mattered no less than grades, causing the number of Jewish freshmen to plummet from 28% in 1925 to 12% in 1933. “According to then-president Abbott Lawrence Lowell”, Thomas writes, “excluding Jews from Harvard would help maintain admissions opportunities for gentiles and perpetuate the purity of the Brahmin race - New England’s white, Protestant upper crust.”

Quite right - although Thomas might have noted that the odious Lowell was not only a eugenicist who believed that America should exclude inferior races, but the leader of a blue-ribbon panel that in 1927 approved the death penalty for Sacco and Vanzetti - Italian-born anarchists who became a cause célèbre after a rightwing judge found them guilty of armed robbery and murder in a trial riddled with flaws. Ben Shahn’s 1932 Passion of Sacco and Vanzetti, which shows a desiccated Lowell standing over the martyrs’ bodies, is one of the most powerful images in radical art. Yet Lowell’s spirit lives on in methodologies that now hold back hardworking Asians in the same way that they once held back hardworking Jews.

So far, so good. But then Thomas goes down a rabbit hole of his own by engaging in what he describes as “an originalist defence of the colour-blind constitution” - one whose purpose is “to clarify that all forms of discrimination based on race - including so-called affirmative action - are prohibited under the constitution”. This is unavoidable from his point of view, since he cannot prove that Harvard’s admissions policies are unconstitutional without assuming that the constitution is colour-blind as well.

But it is nonsense. Of the 55 delegates to the 1787 Constitutional Convention, 25 were slave-owners, who made their presence felt not only in various pro-slavery provisions - eg, the clause that boosted slave-owner representation in the House of Representatives and Electoral College; another requiring Congress to suppress slave insurrections; and one requiring free states to return runaways, etc - but in the constitution’s fundamental architecture.

Bicameralism, for instance, was the brainchild of a Virginia slave-owner named Edmund Randolph. Slave-owners in North Carolina and Maryland played key roles in winning approval for an upper house based on equal state representation. James Madison and other Virginia planters were instrumental in creating a ‘national judiciary’. The aim was to create an elaborate federal structure that would constrain democracy and minimise popular input, while at the same time maximising the power of states that were firmly under slave-owner control.

The results more than two centuries later are appalling. A Senate based on equal state representation means that the majority of the country that now lives in just 10 states will be outvoted four to one by the minority in the other 40. Since 81% of minorities also live in the highly-urbanised top 10, the Senate guarantees that they will be outvoted even more egregiously. Give an Electoral College that is also weighted in favour of rural white states, the Supreme Court ends up tainted, since it is up to the president (chosen by the Electoral College) to nominate members whom the upper chamber then confirms. Yet Thomas wants us to believe that the same doubly-stained judiciary will see to it that a slaveholders’ constitution remains true to its ‘colour-blind’ origins.

Thomas goes so far as to cite the 1776 Virginia Bill of Rights, which declared “[t]hat all men are by nature equally free and independent and have certain inherent rights.” It’s yet more evidence, supposedly, in support of his colour-blind view. Yet this is the same state that a few years later would offer “one able-bodied healthy negro slave between the age of 10 and 40 years” to any patriot willing to sign up for the militia and fight for “freedom”.²

Even worse

Bad as this is, however, the arguments put forth by the other side are even worse. Sonia Sotomayor, a justice appointed by Obama in 2009, is realistic enough in her pro-affirmative-action dissent to acknowledge that the constitution “protected” slavery in various ways. She also admits that, despite years of race-based social policies, minorities are losing ground due to growing de facto segregation in housing and schools.

Which is worse - that admissions officers are allowed to engage in racial horse-trading or that Sotomayor seeks to justify it in the name of anti-racism? Anti-Asian prejudice has reached the point that private consultants advise Asian students not to enclose a photo in their applications or list “typical” Asian extra-curricular activities such as Chinese language school, piano, chess, or playing Indian classical instruments.³ Yet Sotomayor’s only advice is that Asian applicants “who would be less likely to be admitted without a comprehensive understanding of their background” should “explain the value of their unique background heritage and perspective”, so as to allow colleges to “consider the vast differences within [their] community”. As Jay Caspian Kang put it in the New Yorker:

It’s hard not to read this as a premise for Asian American teenagers to essentially dance for acceptance, or to try to distinguish themselves from other Asian Americans by explaining to the good people at the Harvard admissions office why, say, a Vietnamese applicant is more valuable to the Ivy League cultural texture than just another Chinese one.⁴

It is obvious where this is leading to, since Sotomayor quotes other students whose comments strike her as exemplary. These include a black graduate who testified that it was “really important” that the university sees who she is “holistically and how the colour of [her] skin and the texture of [her] hair impacted [her] upbringing”; a Mexican-American who says that her ethno-racial identity is a “core piece” of her identity that has affected her “every experience”; a Harvard grad who testified that being the child of Chinese immigrants was “really fundamental to explaining who” she is; and a black woman who said: “To try to not see [her] race is to try to not see [her] simply because there is no part of [her] experience, no part of [her] journey, no part of [her] life that has been untouched by [her] race.”

A student who believes that skin colour is less important than class or political ideology clearly does not have the right stuff to make it in such a supercharged ideological atmosphere. He or she must either internalise the ruling class racial code or resign herself to attending a less prestigious university.

Even though Harvard claims to be private, 11% of its revenue comes from federal research grants, while another 45% comes from alumni donations that the government indirectly subsidises, since they are tax-deductible.⁵ This is why 29% of each class consists of ‘legacy’ students whose parents also went to Harvard, athletes, and others who are also of “special interest”, because their families are major donors. The goal is to build “a sense of community” among wealthy alumni who would not otherwise contribute if their children could not get in or if Harvard sports teams did not win.⁶ Meanwhile, only 4.5% of students come from the bottom 20% of US families, while 15% come from those making $630,000 or more per year.

Conceivably, as Kang points out, Harvard could have tried to even the score by expanding class sizes, relaxing admissions standards or cutting off its pipelines from exclusive private schools. But wealthy alumni would be unhappy, donations would shrink, and Harvard would no longer be Harvard - which is to say a bastion of the elite. So it finds it easier to play games with racial minorities, while liberals like Sotomayor cheer from the sidelines.

The Students for Fair Admissions decision will not make America any less racist, given how deeply inequities are baked into the US constitutional structure. Indeed, by putting wind in the sails of the pro-Trump forces, it will likely make it worse. But at least it removes a form of liberal racism, whose role has been particularly disorienting.