Justice O’Connor and her colleagues embrace anti-Americanism.
By Shelby Steele
The Wall Street Journal, June 28, 2003
At last the Supreme Court has ruled on the use of racial preferences in university admissions. And now that it has happened, one wonders why the court took up the matter in the first place–unless its goal was to make a bad situation worse. If the two Michigan decisions disallowed the formulaic practice of affirmative action, they simultaneously opened the door to a new nonformulaic subjectivity in which admissions officers are even less accountable in their use of race as a factor in admissions than before. At least in the past they worried that race would be ruled unconstitutional, and this had begun to have a chilling effect on racial preferences. But the court has now removed that anxiety. Universities can, with confidence, take the matter of race and admissions into the proverbial smoke-filled room where, with Cheshire grins, they can titter at the phrase “narrow tailoring.”
And apparently the words diversity and race are synonymous in the mind of Justice Sandra Day O’Connor, who delivered the opinion of the court in Grutter v. Bollinger. “Compelling interest in a diverse student body is not prohibited by the constitution,” she wrote. So diversity, this most spurious of notions, is now undergirded with constitutionality along with race. And when race and diversity stand together as legitimate–even constitutional–principles, we have indeed arrived at the threshold of legally sanctioned racialism. Because diversity works by group preferences, all the individuals in these beatific diverse environments must pursue a good part of their self-interest through their racial groups. The incentive is to make a tribe of one’s race. You end up with a racialist diversity going more toward segregation than integration.
A remarkable feature of this opinion is the way it ignores the vast array of contradictions and unintended consequences that attach to affirmative action–a few of which are its racial divisiveness, its stigmatization of blacks as inferior, its facilitation of identity politics, its encouragement of a victim-focused identity in minorities, its reverse discrimination against whites and Asians, its preference for precisely the least needy minorities, its damage to the principle of excellence, its fostering of a parasitic diversity industry, its cynical refusal to allow the best and brightest minorities to compete openly with their white and Asian counterparts, its flouting of the Constitution’s equal protection clause, and of course its utter failure to close the academic gap between whites and blacks.
Affirmative action was conceived on–and apparently will continue to thrive on–the mere announcement of its good intentions. No amount of failure, blatant corruption, or even lack of support from most whites and (by one poll) 84% of blacks has been sufficient to bring it down. Now the highest court in the land has come under its spell. Why is this policy so free from accountability to performance, so able to sail on in thrall to its own good intentions?
I think we have to conclude that racial preferences serve their true purpose very well, and that they continue against all reason because American institutions need them. And it was institutions–universities, corporations, professional organizations, the military–that submitted over 100 amicus briefs saying quite frankly that they needed to be able to practice race-based preferential treatment for blacks and Hispanics. The fact is that American institutions feel a moral accountability to our racial history that individuals feel only when they speak out on race in the public square. Our institutions (including the Supreme Court) stand permanently in that public square.
In a society where full racial equality is not yet with us, and where institutions often exhibit the very racial stratifications that racism created, American institutions can easily be seen as racist until they prove otherwise. I have called this situation white guilt, not because it has much to do with guilt but because it makes institutions (and individuals in the public square) behave as though they were guilty. They scramble to show deference to minorities because only deference erects the firewall that protects them from stigmatization as racist. Without this protection they can easily lose their legitimacy in our democratic society.
So our institutions engineer the visibility of black and brown faces. This is why the New York Times was so mindlessly devoted to a black reporter whose incompetence was matched only by his compulsive lying. Today there are not enough well-trained black and brown faces to meet demand. Until he got caught, Jayson Blair was a precious commodity despite his incompetence. He even added an impression of journalistic excellence to the Times because institutions like this–and virtually all American universities–have made diversity an aspect of professional excellence.
Of course the people who run America’s institutions do not want to feel that they are merely acting out of cynicism–using blacks and browns as a firewall. So, under layers of euphemistic, unexamined, and empty language (Justice O’Connor is a veritable fount of such–“learning outcomes,” “diversity factors,” “soft variables,” “selection index,” “nuanced judgments”), they conceal the cynicism of what they do by making diversity into a bureaucratic faith, a managerial religion. And this faith is built entirely around their good intentions. When blasphemers to this faith point to the array of ugly unintended consequences, these institutional leaders have only to shift their gaze to the postcard beauty of what they intend.
The Supreme Court has now joined their faith. And in so doing it has enshrined yet another ugly unintended consequence of the diversity faith: anti-Americanism as a source of virtue and power. Precisely because racial preferences have to be implemented by so many jerrybuilt schemes that step over the merit-based procedures of institutions, not to mention the 14th Amendment, they require an especially powerful source of moral authority. And this has been found in the summary indictment of America that emerged in the ’60s from the convergence of so many social protest movements–civil rights, antiwar, feminism, farm workers, environmentalism, etc. The compound effect of all this protest was to cast America as a spiritually empty, greedy, racist and imperialistic nation–a malevolent force in the world.
Thus, anti-Americanism–a reflexive and smug faithlessness in the moral character of America–became the first step to redemption. It became a virtuous attitude in itself, a way to establish one’s credentials as a concerned and socially responsible person. Anti-Americanism, as a credential of virtue, found its political home on the left, and nowhere more securely than in the precincts of academe.
Today the diversity faith is predicated on an updated and subtler anti-Americanism, but an anti-Americanism nonetheless. Since there is no anti-black discrimination in American universities, preferences have to be justified by the idea that America is still a malevolent society where blacks are concerned. And still today–at least in the public square–one must be committed to this view of America in order to credential one’s virtue.
Anti-Americanism is also a formula for power because it truly delivers moral authority and legitimacy to institutions. And in case you think this power is meager, a shadow of its ’60s vitality, consider that the Supreme Court of the United States has just submitted to it.
The most striking feature of Justice O’Connor’s written opinion is that it has no context. Cases of this magnitude, with issues that have not been examined for a generation, call for context–an honest assessment of the fairness of American society. Is the old malevolence of racism still with us to the point that minority aspiration is stifled? In the past Justice O’Connor’s jurisprudence always spoke of “narrowly tailoring” to need, usually to a specific pattern of discrimination. How can giving a preference to people (very often from the upper middle class) who have suffered no discrimination be a narrowly tailored remedy? And what can “compelling interest” mean when no wrong has occurred? Does Justice O’Connor seek to help wronged people or disadvantaged people? If the latter, why the racial preference? Or why not a preference for poor whites who have endured generations of disadvantage and stigmatization?
Here is a justice known for “strict scrutiny” when actual discrimination is in question. Yet when no discrimination is in question she forgoes strictness, and gives both race and diversity constitutional stature. And in the process she betrays all her own careful jurisprudence around race.
Finally Justice O’Connor went with the doubting spirit of anti-Americanism, with a faithlessness in a society that has made more racial progress in the last 40 years than any society in human history. Through our struggles with race, we have grown into a self-examining and racially disciplined society. We deserve justices who can feel certain about the capacity of whites to be fair and the capacity of minorities to compete.