Yes, you read it here: the Supreme Court of the United States, in a 6-2 decision (Elena Kagan took no part in the case), upheld Michigan’s ban on racial discrimination in college admissions, overturning a lower court’s intervention to reverse a 2006 referendum in which Michigan voters decisively rejected the invidious process.
You’ll be reading a lot about this in the coming weeks, of course, but I suspect that most of the stories you’ll read will use the phrase “affirmative action” in stead of “racial dsicrimination.” That is understandable, not least because the SCOTUS decision employs the phrase in the headnote to its decision: “SCHUETTE, ATTORNEY GENERAL OF MICHIGAN v. COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRATION RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY (BAMN) ET AL.”
“By any means necessary,” forsooth. Where have you heard that before? If I forbear to employ the mendacious phrase “affirmative action” if is because it is a sterling piece of left-wing Newspeak. “Racial discrimination” doesn’t sound nice to our civilized ears. So we rename it “affirmative action” and it makes us feel better about tearing off the blindfold on the figure of Justice on courts of law and doing the same thing in the admissions offices of our colleges and universities.
G.K. Chesterton once described the “false idea of progress” as “ changing the test instead of trying to pass the test.” That’s what so-called “affirmative action, i.e., discrimination on the basis of race, or sex, or whatever this weeks favored “victim” category may be.
Right on cue, Justice Sotomayor wheeled out the “centuries of racial discrimination” meme. Guess what, we know there was chattel slavery in this country (as there was in nearly every other society known to man) and we know, too, that it ended rather late here. But end it did, almost 150 years ago. If you want to know why slavery persisted in parts of the United States, read Gene Dattel’s brilliant Cotton and Race in the Making of America: The Human Costs of Economic Power. Are you looking for someone to blame for all that misery? You might try Eli Whitney and his clever invention for carding cotton. Or maybe you should blame the English, who had a greedy appetite for our cotton.
But I digress. There will, as I say, be a lot of ink spilled about this decision. The New York Times has already weighed in with a piece of sanctimonious handwringing (“ . . . a fractured decision that revealed deep divisions among the justices over what role the government should play in protecting racial and ethnic minorities.”) Expect more of the same tomorrow.
But let’s step back for a moment and consider that strange phrase “affirmative action.” Where did it come from? Yes, “affirmative action” was first undertaken in the name of equality. But, as always seems to happen, it soon fell prey to the Orwellian logic from which the principle that “All animals are equal” gives birth to the transformative codicil: “but some animals are more equal than others.”
Affirmative action is Orwellian in a linguistic sense, too, since what announces itself as an initiative to promote equality winds up enforcing discrimination precisely on the grounds that it was meant to overcome. Thus we are treated to the delicious, if alarming, contradiction of college applications that declare their commitment to evaluate candidates “without regard to race, gender, religion, ethnicity, or national origin” on page 1 and then helpfully inform you on page 2 that it is to your advantage to mention if you belong to any of the following designated victim groups.
The whole history of affirmative action is instinct with that irony. The original effort to redress legitimate grievances—grievances embodied, for instance, in the discriminatory practices of Jim Crow—have mutated into new forms of discrimination. In 1940, Franklin Roosevelt established the Fair Employment Practices Committee because blacks were openly barred from war factory jobs.
But what began as a Presidential Executive Order in 1961 directing government contractors to take “affirmative action” to assure that people be hired “without regard” for
sex, race, creed, color, etc., has resulted in the creation of vast bureaucracies dedicated to discovering, hiring, and advancing people chiefly on the basis of those qualities. White is black, freedom is slavery, “without regard” comes to mean “with regard for nothing else.”
Had he lived to see the evolution of affirmative action, Alexis de Tocqueville would have put such developments down as examples of how in democratic societies the passion for equality tends to trump the passion for liberty. The fact that the effort to enforce equality often results in egregious inequalities he would have understood to be part of the “tutelary despotism” that “extends its arms over society as a whole; it covers its surface with a network of small, complicated, painstaking, uniform rules through which the most original minds and the most vigorous souls cannot clear a way to surpass the crowd.” The passion for equality demands “affirmative action,” even though the process of affirmative action depends upon treating people unequally.
The French philosopher Jean-François Revel put it well when he observed, in 1970, that “Democratic civilization is the first in history to blame itself because another power is trying to destroy it.” We should be grateful that the Supreme Court of the Untied States today stood up for genuine equality before the law dealt a significant blow to the rancid culture of racial redress.