A rally in Boston’s Copley Square in support of Students for Fair Admissions’ lawsuit against Harvard University and to protest Harvard’s alleged anti-Asian discrimination in admissions on Oct. 14, 2018. Jessica Rinaldi/The Boston Globe via Getty Images.
A pair of cases now before the Supreme Court arise out of lawsuits brought by Students for Fair Admissions (SFFA), an organization of Asian American students and parents. The suits—a bold attempt to reverse a blatant experiment in social engineering—charge Harvard College, a private institution, and the University of North Carolina, a public institution, of lowering the bar of admittance for certain favored racial and ethnic groups while raising it for others, thereby openly violating the deliberate wording and explicit intent of the 1964 Civil Rights Act. In the same vein, the two lawsuits also ask the court to overturn its 2003 decision in Grutter v. Bollinger; in that case, the justices carved out an exception allowing just such discriminatory practices if undertaken in pursuit of the (alleged) “educational benefits that flow from a diverse student body.”
A ruling against the two schools would be very welcome, and we owe a great debt to the plaintiffs whose devotion to this country and its laws has carried them through long years of struggle to arrive at this point. True enough, most Americans, in an increasingly pinched bread-and-butter economy, have more things to worry about (inflation, crime, health care, abortion for and against) than what might seem like “a high-class problem.” Even citizens worried about our educational institutions tend to have in mind the years of compulsory schooling rather than college and beyond. They might reason that the students for whose sake the lawsuits have been brought are likely to prosper irrespective of the outcome, so what if some of the brainier among them, disfavored by today’s rigged quotas, have to settle for less prestigious schools?
But what happens at Harvard doesn’t stay at Harvard—as American Jews in particular know from their own experience, having once been excluded by quotas when they were the applicants armed with disproportionately higher grades, better intellectual training, and stronger family pressure to succeed. In fact, the authors of the present lawsuit open by drawing an analogy between the effort in the 1920s to limit the number of Jews entering Harvard and the current policy limiting the number of Asians, who are today’s highest-performing academic group.
In the light of that resemblance, one might have expected today’s American Jews to join the Asian-American students and their parents against a policy so clearly and unlawfully prejudicial to them. And some Jews did. For instance, the Louis D. Brandeis Center for Human Rights Under Law (LDB) joined with the Silicon Valley Chinese Association Foundation in an amicus brief supporting the plaintiffs. The brief argues that
just as Harvard used methods in the 1920s and 1930s to identify applicants of sufficient “character and fitness” as a pretext to discriminate against Jews, Harvard’s current use of [an applicant’s] “personal rating” to pursue student-body diversity is a pretext to discriminate against Asian Americans.
It concludes: “Different time period. Different ethnic/racial group. Same discrimination. It was wrong then, and it is wrong now.”
But then there is the Anti-Defamation League (ADL), a much larger Jewish organization, bearing a pedigree going back to the early 20th century and proclaiming its mission not only “to stop the defamation of the Jewish people” but also more broadly “to secure justice and fair treatment to all.” In contrast to the LDB, the ADL in its own amicus brief threw its support behind Harvard’s contention that the university, in conformity with Grutter, has simply been pursuing the benefits of racial diversity—such a pursuit being, in the words of a New York Times writer, “the sole justification accepted by the Supreme Court for allowing what . . . the Constitution and a federal law [i.e., the 1964 Civil Rights Act] would otherwise forbid.” Since, according to the ADL, Harvard’s practices today are based on the premise that “exposure to a diverse academic community serves critical societal needs,” the university’s current policy cannot be equated with its earlier policy designed explicitly to decrease Jewish enrollment.
How can two Jewish organizations, both committed to protecting American justice and American Jewry, be supporting opposite sides? I am reminded of the joke about the rabbi of the fictional Chelm who in a dispute between two parties pronounced both of them to be in the right and, when asked by his wife how both could be right, replied: “You are also right.” On this issue, unlike the Jews of Foolstown, we had better know where we stand.
In one respect, the commonly cited Asian-Jewish analogy is indeed somewhat misleading: discrimination against Jews in the past and against Asians in the present comes from two different political directions. In the 1920, anti-Jewish quotas were conservative attempts to preserve the character of the institutions in question. Colleges like Harvard worried that the presence of “too many” Jews would adversely affect the Protestant-American spirit of their educational mission, which they identified with “the best” of Western civilization and Christian tradition. In the name of maintaining strong national values, the number of aliens had to be kept at a minimum.
Such views were held not only by Harvard’s then-president A. Lawrence Lowell but also by respected cultural figures like the historian Henry Adams and the poet T.S. Eliot with the latter’s conviction (later suppressed) that for a culture to survive, “reasons of race and religion combine to make any large number of free-thinking Jews undesirable.”
The ideal of preserving American values and the best of Western civilization was worthy and defensible; it could not be achieved, however, by prejudicial restrictions that blatantly violated some of those same values. For many Americans, anti-Jewish quotas would inevitably come to be associated with the anti-Semitism concomitant with the rise of German fascism. Once America entered, and won, the war against Nazism, its citizenry turned against nativist prejudice altogether. Not only was anti-Semitism widely condemned, but American society began to take pride in its multiplicity and inclusiveness. By the 1960s, state laws against black Americans were finally ruled unconstitutional; in 1964, the Civil Rights Act outlawed discrimination on the basis of race, color, religion, sex, or national origin.
Undoing discriminatory quotas and outlawing discriminatory practices aligned the country more closely with its founding ideals. But the alignment needed to be upheld, and when necessary enforced. As Judaism rests on preserving the best of the past, American Jews especially had a deep interest in strengthening the foundations of the republic that, having gone to war to defeat Nazism, now more than ever represented freedom and opportunity to much of the world. As they thronged into the universities and into the precincts of high culture, many of yesterday’s “alienated intellectuals,” Jews and non-Jews alike, discovered in themselves a newly won attachment to their American homeland and the will positively to safeguard both it and its culture. (See the self-confidently possessive pronoun in the title of a 1952 symposium, “Our Country and Our Culture,” sponsored by the left-wing highbrow journal Partisan Review.)
And yet, it was in the 1960s that numbers of leftist Jews—among them, notably, a coterie of Communists—began citing various purported abuses as an excuse for trashing American “capitalist imperialism.” Applying Communist principles (minus the Soviet terminology), older and younger radicals and their liberal fellow travelers undercut the notion of American exceptionalism and with it the reputation of the country’s institutions.
Just when the nation was shedding its prejudices, whole sectors of the cultural elite, tired of democracy’s slow but steady method of improvement, looked for quicker ways to correct real or alleged past wrongs. This was “progress” with the troubling connotation of a movement, to undo the carefully constructed system of American government and laws. It was into this environment of grievance and blame that group preferences were introduced into college admissions, an effort to calm tempers and mollify agitators by radically sacrificing democratic means to progressive egalitarian ends.
By now, the harm of group preferences has extended far beyond today’s deserving Asian students who are denied admission to elite colleges. The most obvious adverse effect has been to shift the officially proclaimed goal of the university from academic excellence to racial and gender diversity, or from higher education to political reeducation. By calling their enterprise a species of affirmative action—a corrective to past injustice—supporters of the policy claim for themselves unquestionable and exclusive virtue.
But whereas earlier forms of discrimination were correctible by the fairer application of a fundamentally fair standard—and indeed had been corrected in the Civil Rights Act—affirmative discrimination, defining itself as a presumably advanced and therefore irreversible standard, denies the possibility of correction. The policy of group preferences flouts the Civil Rights Act by introducing the very categories of race and gender that the act explicitly rejected in the name of individual opportunity and equal rights, and does so without admitting that it has thereby subverted individual opportunity and equal rights.
In short, affirmative discrimination has been propelled by ideology rather than by evidence brought or measurable results demonstrated. The academic world that undertook this social transformation has at no time defined its goals, or set benchmarks for success, or anticipated problematic developments, or done the kind of planning that any enterprise would have to do before it could launch a comparable experiment.
Nonetheless, in the interest of diversity, the Supreme Court’s 2003 decision in Grutter v. Bollinger permitted the University of Michigan Law School to treat race as a “plus” factor in admissions. Trying to contain the all-too-evident potential damage, Justice Sandra Day O’Connor set a 25-year time limit for this policy on the grounds that by then, what with the progress toward diversity sure to have been achieved by the policy’s implementation, “the use of racial preferences will no longer be necessary to further the interest approved today.” What she fatally misunderstood was that the policy would never be subjected to any such test of its “progress,” and no more than the Soviet Union’s misguided agricultural experiments, also known as “five-year plans,” would it ever be strictly time-bound to prove its worth.
I keep citing totalitarian models because it was at this point that political correctness overtook the universities, institutions whose mission was to guard against just such straitjacketing of the free mind. During my own time teaching at Harvard, I witnessed the full force of ideological suppression every time the president offered the faculty council another glowing report on how much diversity had been achieved.
Once, I objected at a meeting that the practice of group preferences had instead encouraged the (inevitably) divisive growth of identity politics. Any student admitted to a college that favored his or her group could feel entitled to benefit from that identification and to exploit the political advantages thereby accruing to it. Nor was identity politics an accidental outcome; to the contrary, it was a necessary and predictable outcome of affirmative discrimination. Groupthink, the tendency toward conformism that a decent liberal education was meant to challenge, became “think group”: a calculated search for collective gain based (once again) on the very categories proscribed by the Civil Rights Act.
Another time, I argued before the faculty that enforcing racial diversity was bound to decrease both intellectual diversity and political diversity. By then, the policy of affirmative discrimination was being applied not only in college admissions but much more strenuously in faculty hiring, where the effects were far worse. Many of its beneficiaries introduced tendentious courses on gender and race to replace the study of foundational texts and traditional courses in Western civilization. Faculty members who had themselves been hired on the basis of affirmative action would in turn hire on the same basis. The results were what we could see: an almost complete removal of conservative thought and thinkers from the major universities. My proposal that Harvard conduct its own study on the correlation between the introduction of color diversity and the decline of intellectual diversity was quashed like a flea and denounced by a colleague as too extreme to be taken seriously.
Some important black thinkers, including Thomas Sowell and his biographer Jason Riley, have pointed out the substantive harm that has been done by these aspirational policies to the very constituency they were meant to serve and that have instead worked (in the words of Edward Blum, the founder of SSFA) to “stigmatize recipients, punish better-qualified applicants, and pit Americans against one another.” Had the elite schools truly intended to educate the disadvantaged, they would have tested effective ways to teach and advance students as and where they really were situated, pausing at every checkpoint to assess results and correct the miscalculations of any experiment. What we have instead is a house of lies, with deans of diversity applying ruinous categories to cover up the policy’s damage.
The lying is especially corrosive in an institution dedicated to the pursuit of truth. The term affirmative accredited the policy’s intentions and its anticipated results in the same way that socialist ideologues blithely tout the need for equal outcomes (“equity”) as a substitute for the great American ideal of equal opportunity. There are by now so many academics who were themselves hired on this preferential basis, teaching so many courses to preach its doctrine, with so many administrators to reinforce its application, and so many affiliated alumni, governors, and students cowed into submission, that the policies advertised as Diversity, Equity, and Inclusion (DEI) are impervious to internal challenge.
I do not need to dwell on the grievously demoralizing effects of the new doctrines of racialism and identity politics on Jewish college students in particular. A politics of grievance married to a culture of cancellation needs a tangible target—and Jews, who are anyway the first choice of all anti-democratic coalitions, are a convenient foil. The plight of Jewish students being called out specifically for their “white” privilege, vilified for their pro-Israel sentiments (whether they have them or not), canceled for their association with a “racist” and “patriarchal” faith (whether they know anything about it or not), and in all too many cases left feeling helpless and alone, is an outrage.
But that’s just the problem. How did liberal American Jews not realize that they and their children, even more than Asians once admitted, would be defamed and ostracized by this movement that has the universities in its thrall? Wealthy Jewish parents and/or alumni may have counted on their personal resources or connections to get their own children through the universities’ closing gates; the ideologues among them may even have felt ready to renounce their own white privilege—a slur that some were voluntarily applying to themselves even before resentful minorities threw it in their face. Such groveling has never appeased but only kindles the inciters’ ambitions.
And here, speaking of Jewish delusions, I return to the ADL. That organization’s leftward drift, corresponding to that of Harvard and other schools, directs attention away from many of the most dangerous present forms of anti-Jewish politics—Islamism, Iran, the UN’s anti-Zionist axis, intersectional coalitions of Palestinians and the left, the anti-Israel caucus in Congress, and yes, the anti-Semitism festering in the universities—instead focusing alone on anti-Jewish activity on the part of the far-right. That same ideological drift is what allows the ADL in turn to support discrimination in Harvard’s defense.
The point is all too obvious. If Jews are a target of convenience, the target is all the more tempting when they offer themselves up. In failing to fight for the democratic principles that guaranteed them fair treatment, such Jews have failed the very institutions in America that reformed themselves in order to grant fairness to all. That so many Jews have been among the ideological proponents of this policy makes their participation all the more grotesque.
Intellectual diversity, individual accomplishment, honest inquiry, fair and equal treatment, the reach for excellence—all these were subordinated to a policy that the highest court in Grutter had twisted itself into a pretzel to condone, to no avail. My hope is that now the highest court will act to prevent more harm from being done by ruling in favor of the plaintiff, reaffirming the Civil Rights Act, and invalidating the future use of group preferences in admissions and hiring. Then, with all available means and honest dedication, let the hard work begin of giving all children in elementary and high schools—who are now being sacrificed to the cosmetics of racial diversity—the equal educational opportunities they deserve.
To be sure, my hopes are tempered by the knowledge that places like Harvard will almost certainly resist adjusting to any such adverse decision. Nonetheless, by so acting, the Supreme Court would at least force some universities to come to grips with the harm they have done or tolerated. And this matters greatly because, of all the harms that group preferences have wrought, the most serious is the sense of unassailable righteousness with which it was introduced and imposed and by which it is still upheld.
The swing away from pragmatic, level-playing-field, equal-opportunity support for constitutional democracy to the ideologically insistent pursuit of social justice destroys the best hopes and betrays the best interests of Jews and all citizens—which, history proves, are always the same hopes and interests. Whatever happens, let us work to try to repair the damage.