For nearly five decades, American universities systematically discriminated against white and Asian Americans. Quotas, “holistic review processes,” and “factors” were used to advance the Left’s racist social policies, first on the pretense that they remedied prior discrimination, next in alignment with the theory that diversity was good for the nation, and most recently to deal with the pretend phenomena known as “systemic racism” and “white privilege.”
More Americans are fighting back against the Left’s racist admissions policies, scholarship criteria, and related practices.Such racist, utopian scheming used to be called “affirmative action,” an innocuous term designed to conceal blatantly racist and unlawful discrimination. But despite the anodyne packaging, discrimination against whites and Asians violates the plain meaning of the Civil Rights Act of 1964 (and amendments thereto) and the Fourteenth Amendment. It always has. Today, more Americans, including more white and Asian-American students, are fighting back against the Left’s racist university-admissions policies, scholarship eligibility criteria, and related practices.
These changes are happening around the nation, including in North Carolina’s leading institutions, with Duke walking back a race-based scholarship program on the heels of the Supreme Court’s momentous ruling against the University of North Carolina and Harvard College in 2023’s Students for Fair Admissions.
Liars and Lawyers
The Constitution and the nation’s paramount civil-rights laws prohibit the type of racism that, for 50 years, the Left has advanced. Indeed, only a lawyer with a particular ideological bent could ignore the plain meaning of Section 1 of the Fourteenth Amendment (No state shall “deny to any person within its jurisdiction the equal protection of the laws”) or the Civil Rights Act of 1964 (“No person … shall, on the ground of race … be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”).
Fortunately for the Left, most Supreme Court justices since 1978 have been ideological fellow travelers. As such, the unlawfulness of the Left’s racist university-admissions policies was never more than an inconvenience. Beginning with Regents of the University of California v. Bakke (1978) and continuing with Grutter v. Bollinger (2003) and numerous other cases, High Court majorities overlooked racism against whites and Asians by refusing to confront the plain meaning of the law.
Initially, the Left discovered that it could sell racism to a national audience by cloaking it as benevolent. Here’s Justice Brennan in Bakke: “Government may [use racial discrimination] when it acts … to remedy … past racial prejudice.” In other words, the Left’s racism was socially acceptable (and therefore lawful) because it was intended to compensate blacks for past discrimination. This non sequitur carried the day for 25 years before it gave way to pollyannaish claims about diversity’s supposed benefits.
By 2003, the Left had changed gears and was “all in” on its claim that more “diversity” was always better for everybody, provided it was the right type of diversity. In Grutter, the Court justified the University of Michigan’s racist law-school admissions policies because they purported to advance the nation’s “compelling interest” in racial diversity—that being the “right type” of diversity at the time. By “compelling interest,” O’Connor meant activity that would result in racism against whites and Asians. Why? Because “numerous expert studies” about “learning outcomes” in our “increasingly global marketplace” somehow “proved” that universities needed to adjust the racial makeup of their student bodies.
The Left’s racism was socially acceptable because it was intended to compensate for past discrimination.This was not legal reasoning, which explains why O’Connor added one of the most bizarre conditions in the history of jurisprudence: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” A little racism today will result in less racism tomorrow—or something. In the intervening two decades, however, Americans grew increasingly suspicious of diversity’s supposed benefits.
If the Left originally justified its racism as benevolent and then as a national “compelling interest,” it always assumed that Americans would accept the tacit argument that black underrepresentation in universities was the consequence of overt racism. If that was partly true in 1978, it is entirely false today. Decades into this mess, “affirmative action” (i.e., racism) in admissions has had the unintended effect of exposing that black underperformance is not due to racism. Instead, as anti-black racism disappeared with the declining memories of the oldest boomers, the black achievement gap persisted. Today, it is common knowledge among those who dare say so that blacks have lower standardized test scores and lower grades and that racism has little or nothing to do with it.
Still, the Left refused to entertain other explanations for this achievement gap. Instead, it went all-in on “racism.” But, since it can’t point to specific acts of discrimination in admissions, the Left began to claim that blacks’ lower standardized-test scores and inferior grades were caused by all-encompassing and non-falsifiable things like “systemic racism” and “white privilege.” This was make-believe.
Theory Meets Reality
The problem for the Left is that today’s white and Asian-American students were not alive when O’Connor delivered her sophomoric prediction. They have no lived experience with the so-called racism that gave rise to the Left’s interminable battle against mostly imaginary injustices. True, these students have endured 17 years of indoctrination about “systemic racism.” But, in coming of age, they now see that the world is different from what they were led to expect.
For one, they almost never witness anti-black racism, because it is extremely rare. Instead, their first experience with racial discrimination is on the receiving end of university admissions decisions, in scholarship awards, and elsewhere in the university system. At the same time, they see enormous advantages given to black students, many of whom are admitted into prestigious and academically demanding universities for which they are underqualified and unprepared.
Somebody must build the power plants, fly the planes, pave the roads, and conduct the open-heart surgeries.This has been going on for decades: universities following the Left’s social policy to discriminate against whites and Asians in admissions. This results in the exclusion of qualified students and the admission of unqualified students—in effect, a policy to subsidize incompetence. The obvious result is more incompetence … and more anti-white and anti-Asian racism.
Of course, this cannot continue. Incompetence is subject to negative feedback: Somebody must build the power plants, fly the planes, pave the roads, and conduct the open-heart surgeries. Unqualified students admitted to elite universities will not become those people. Only those with the requisite knowledge, training, and skill can do so. The magical thinking that underlies the Left’s utopian scheming—racism and all—may be coming to an end. As Herb Stein said: “If something cannot go on forever, it will stop.”
And the end is in sight. Asian and white students have started to wonder whether their “privilege” is really all it’s made out to be. They observe that anti-white and anti-Asian racism in universities, spurred on by the Left, has begun to spiral out of control. This has led them to fight back. Their efforts began to bear fruit just last year in Students for Fair Admissions. There, the Supreme Court began to undo the damage wrought by nearly 50 years of racism in admissions: It effectively reversed Bakke and Grutter, discarding O’Connor’s inane remark as “oversold” and lambasting UNC’s audacious assertion that it would consider race to a greater extent in the future. “In short,” the Court held, “there is no reason to believe that [the universities] will … comply with the Equal Protection Clause anytime soon.” Though decades late, this ruling opened the floodgates.
In the wake of the Supreme Court’s about-face, Duke University shelved its explicitly racist Reginaldo Howard Memorial Scholarship Program that, by its terms, was awarded only to black students. That was April of this year. In May, a class-action lawsuit challenged the University of Oklahoma’s racially discriminatory financial-aid decisions. That suit points to formal events like a “Welcome Black Weekend” orientation to reveal the systematic nature of the university’s racism. A week later, MIT was hit with a civil-rights complaint for its “Creative Regal Women of Knowledge” program, which promotes opportunities for a panoply of identitarian groups that include everybody but straight, white males. And, shortly after that, the governing board of the University of Missouri filed a petition to “remove racial and ethnic criteria from scholarships.”
Though these are promising steps, let us not forget that university bureaucrats are well versed in beating strategic retreats. Take Duke, for example. In rebranding its “Reginaldo Howard Scholars” program, a Duke vice president reiterated Duke’s “commitment to diversity [and] support of HBCU graduates.” This innocuous-sounding verbiage has been used for decades as thin cover for racist policies. It’s easier, after all, to rebrand than to reform, especially when liberal shibboleths are at stake.
The entire edifice of racism in service of the Left’s social goals has been a betrayal of our founding principles.At any rate, all these challenges rest on the Equal Protection Clause and the Civil Rights Act. This is ironic, since nothing has changed in the constitutional or statutory text. What has changed is that regular Americans are waking up to the Left’s dishonest and racist legal activism. We remembered what we knew long ago. As Justice Roberts said, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
White and Asian students now realize that “systemic racism” and “white privilege” are nothing more than pretenses designed to conceal the absence of racism against blacks while wishing away the achievement gap and its real causes. They also realize that the Left deployed these concepts at their expense.
The entire edifice of racism in service of the Left’s social goals has been an embarrassment to the Supreme Court, a disaster for black Americans, unfair to white and Asian Americans, and a betrayal of our founding principles. It is nothing short of a national disgrace. Now, it seems, Americans are starting to realize it.
T.J. Harker is the general counsel of a Knoxville, Tennessee, company. Until recently, he was an assistant United States attorney for the U.S. Department of Justice, where he investigated and tried national white-collar fraud and espionage matters. He recently launched Amicus Republicae on Substack.