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A lot is on the line as the U.S. Supreme Court begins deciding two separate cases on the use of race-based admissions policies at universities. The practice, commonly known as affirmative action, is rooted in the notion that race-based discrimination was necessary to correct the racist policies of the past.
The use of race in this manner has survived several court challenges over the past few decades, but the above cases—in which the non-profit group, Students for Fair Admissions, is suing both the University of North Carolina and Harvard—may finally put an end to it.
The court heard oral arguments on Monday, and will now vote privately. But we probably won’t know the outcome until the end of the current term in June, when the written opinions of the justices will be made public.
There’s more at stake here than the question of who gets to be a student at these two venerable schools. This is why the decision of the Anti-Defamation League, the group that is supposed to be defending Jews and opposing discrimination, to side with the universities in these cases is so disappointing.
It demonstrates once again that the ADL has become nothing more than just another liberal advocacy group supporting the racialist agenda of the left wing of the Democratic Party. In so doing, the ADL—along with the Biden administration, which also sought to intervene in these cases—is betraying the vision of a color-blind society articulated by Dr. Martin Luther King Jr.
A racial agenda
In place of this vision, the ADL and its leftist allies are essentially supporting a view of society that conforms to the toxic myths spread by critical race theory (CRT) advocates, who wish to permanently divide society on the basis of skin color.
At a moment in history when CRT has become widely accepted and used to indoctrinate students and employees at governmental and private institutions, the Supreme Court has a unique opportunity.
By forcing UNC and Harvard to stop using race as a determining factor in admissions, it can send a clear message to the country that employing race in order to justify discriminating against some so as to allegedly empower others, is both wrong and illegal.
In the decades since such affirmative action was first implemented, a lot has changed. The idea of its being needed to serve as reparations for the impact of slavery and Jim Crow discrimination is no longer as compelling, since multiple generations have grown up since the triumph of the Civil Rights movement.
That is no longer the argument used by its defenders. Instead, they say that it is needed to advance the cause of “diversity” at institutions of higher learning. These advocates of affirmative action seek only one form of heterogeneity, however: that relating to skin color–not that relating to economic status (the real divide between those who are privileged and those who aren’t in 21st century America) or viewpoints.
“Diversity” was the reason the Supreme Court upheld race-based admissions at the University of California in the 1978 Regents v. Baake case by an 8-1 vote, though specifying that it could not be achieved by racial quotas.
That decision was reaffirmed in the 2003 Grutter v. Bollinger case. There, the court upheld the University of Michigan Law School’s use of race for the purposes of diversity by a 5-4 vote.
Writing for the majority in that case, Justice Sandra Day O’Connor unpersuasively claimed that the practice did not “unduly harm nonminority applicants.” But she also made it clear that using race in this manner could not go on forever.
“The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote in the majority opinion.
Using race in this manner indefinitely would be enshrining it as a permanent factor in such a way as to disconnect it from any remedy for the past and become just another form of racial discrimination. As Chief Justice John Roberts wrote in a separate case about public high school admissions, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Unfortunately, this is precisely the kind of discrimination in which UNC and Harvard—as well as many other schools—are engaging. And their defenders, like the ADL, strive to ensure that it goes on forever. What they aim to perpetuate pretends not to amount to discriminatory quotas, but in practice is very much like them, also should resonate for Jews.
Once the Jews, now the Asians
Jews were specifically singled out for prejudicial treatment at elite universities in the early 20th century. Due to their high level of achievement and the reverence for education that has always been part of the community’s heritage, their numbers were increasing in schools with selective admissions policies.
Faced with simply too many Jews on campus to suit the prejudices of administrators, faculty and alumni, Harvard and others began to try to cap entry of that particular group.
Those discriminatory quotas were eventually dropped. Ironically, however, they have been revived in recent years, due to the belief that race-based affirmative action is more important than a policy rooted in the principle of equal opportunity.
Today, Asian-Americans play the same role that Jews did in the past. And, like the Jews of a century ago, their numbers in elite schools far outstrip their percentage in the general population.
To ensure, thus, that schools are “diverse” enough, Asian-American students—who, like the Jews, are a minority group—are the ones being denied admission, while others with lower test scores, worse grades and fewer personal accomplishments are allowed entry. This satisfying of diversity goals constitutes the establishment of quotas in all but name.
During the course of oral arguments before the Supreme Court, Harvard apologized for its anti-Semitic discrimination in the past. But it claimed that its current policy towards Asians is different. This is a point that the ADL backed up in its friend-of-the-court brief that supported Harvard.
What Harvard and the ADL are arguing is that discrimination against Asians is permissible because it is done in the name of diversity, not motivated by anti-Asian racism—even if, in practice, it amounts to the same thing.
Racial discrimination in all but name
But that claim is belied by the process employed by the university, which judges students by an amorphous “personal” category. As the plaintiffs in the case have proved, this arbitrary rating system consistently categorizes Asians as having low “personal” scores.
This means Harvard is either saying that most Asians have negative habits—an appalling racist notion—or, as is certainly the case, practicing racial discrimination in much the same way that it once did against Jewish students.
This is an injustice that the court must end. But the battle over affirmative action is more than a fight over highly prized seats in Ivy League classrooms.
The greatest challenge facing America today does not come from a faltering economy or foreign enemies. It is a movement on a quest to define and divide Americans by race and background, rather than to see them as individuals.
The Black Lives Matter movement, its intellectual gurus (such as Ibram X. Kendi) and their allies like Robin D’Angelo—author of the intellectually bankrupt White Fragility thesis—want a country in which race trumps every other factor. They wish to make the schisms between us, in which we’re all categorized as either oppressors or victims, permanent and unbreakable.
That is not only itself racist; it’s a recipe for permanent racial strife that would undo all the great progress made by the Civil Rights movement. And the same theories grant a permission slip for anti-Semitism, since Jews—and the State of Israel—are deemed “white oppressors.”
The ADL’s endorsement of the divisive and dangerous BLM movement ensured that it would also follow other left-wingers down the rabbit hole of CRT and affirmative action, even while it disingenuously protests that it opposes racism and discrimination.
For the ADL, it’s just one more betrayal of its mission. But it’s also a blow to the values of freedom and equal opportunity, which are antithetical to both CRT and affirmative action racial discrimination.
Let’s hope that a majority of the justices are ready to discard this corrosive practice and rule that racial discrimination, even when supposedly being done in the name of equality and justice, is both immoral and illegal.
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.