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America’s long struggle with affirmative action

According to the prophecy, we are in the last days when race will matter in the molding of American citizens. This particular prophecy was made in 2003 by Sandra Day O’Connor in the majority opinion for Grutter v. Bollinger. Upholding the University of Michigan Law School’s right to use a race-conscious admissions process, she nonetheless declared that such measures would soon be obsolete: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” By biblical standards, it is a mild, carefully hedged prophecy. But it has had biblical effects, influencing college and graduate-school admissions policies across the nation, touching the destinies of millions, and altering the American map of hope and bitterness.

For some on that map, O’Connor’s decision was itself a source of pain and a spur to action. To see why, we need to remember that on the same day her opinion was handed down — June 23 — the Supreme Court delivered a very different ruling in a similar case, Gratz v. Bollinger. Jennifer Gratz had targeted the University of Michigan’s undergraduate admissions plan. Writing for the majority, William Rehnquist argued that in her case, the university had indeed violated the Equal Protection Clause.

Gratz had applied to Michigan in 1995. By the time the Court issued its ruling, she had long since earned a mathematics degree from another school, and was working in computer software. But the gut punch of the Grutter decision affected her so deeply that she left all that behind for a new career as an anti–affirmative action warrior. In time, Gratz founded and led the cannily named Michigan Civil Rights Initiative — a missile aimed directly at O’Connor’s prophecy.

In 2006, M.C.R.I. collected enough signatures to put a constitutional amendment to kill affirmative action on the state ballot. Despite accusations of fraud — black voters were allegedly told that the petition supported affirmative action — the initiative went forward, and passed with 58 percent of the vote. Fraud or no fraud, American politics runs on spin, and the pro–affirmative action forces were out-spun in this instance.

They did their best to overturn the vote, taking the case all the way to the Supreme Court. There too they were rebuffed. In his opinion, Anthony Kennedy performed the delicate dance that Supreme Court majorities have been doing around the American psyche for the past six decades. Of course, he conceded, there might be ugly voices in the public debate that would “use racial division and discord to their own political advantage.” But the voters had spoken, and they had

deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it.

This would be all well and good if the affirmative action debate had ever been carried on at the level of rational thought — preserved, as it were, in a jelly of emotional repose. Put another way, it would all be well and good if the debate were occurring in the imaginary zone that the philosopher John Rawls called the “original position,” where a sort of blissful amnesia would relieve people of their political identities, envies, antagonisms, and all the other social tensions that keep them at odds. Alas, in a world where the high-achieving Jennifer Gratz’s humiliation is an impetus to constitutional change, and where the deliberate short-circuiting of rationality is the job of campaign strategists, political positions are the reality and the original position is a dream, albeit a necessary one.

The big question is, what is the best way to get that dream into more heads? The diversification of college campuses is, for such supporters of affirmative action as O’Connor, one of the important ways. But this is a solution only at the end of one thread of history — which, like everything else in America these days, is bifurcated at the very least, if not madly braided. So alongside the earlier two plaintiffs, we must consider a third, who no doubt shared Gratz’s sense of mortification: Abigail Fisher.

Just as the young Gratz dreamed of going to the University of Michigan in Ann Arbor, Fisher had dreamed since childhood of going to the University of Texas at Austin. She was rejected by that school in 2008. Soon after, she was contacted by a friend of her father’s named Edward Blum, who ran a one-man legal foundation, the Project on Fair Representation. His latest project was a lawsuit to challenge the affirmative action policy at U.T. — and he just happened to be casting around for a lead plaintiff.

Idealistic, straightforward, relentless, Blum is a hard man to pin down ideologically. He took up do-it-yourself advocacy after retiring from an investment-banking career, and had initially crusaded against gerrymandering in various Texas congressional districts. He views himself as a sort of apostle of fair play. Ironically, then, one effect of his expanding battle to purify American political life was the invalidation of a provision of the 1965 Voting Rights Act designed to protect minority voters from discrimination in former Jim Crow states.

Blum’s logic inevitably led him to add affirmative action to his target list. After Fisher fell into his lap as plaintiff, he put her together with a legal team and pointed her case at the Supreme Court: an opening salvo in what he viewed as a battle to restore the legacy, and even the honor, of the civil rights movement.

“People of goodwill can disagree on what the goals of the civil rights movement are today,” Blum told me in August 2016. “But not on the founding principles.” Many, of course, might view his campaign as an effort to roll back the victories of that very movement. But Blum insists that he is completing the mission. So along with invoking Brown v. Board of Education, he cites one of its less celebrated precursors, Sweatt v. Painter. In that 1950 case, the Supreme Court ruled that U.T. Austin’s segregated law school was obliged to admit the plaintiff, Heman Sweatt — whose application, the Court recognized, had been “rejected solely because he is a Negro.”

Sixty-six years later, Blum, who is white, regards Sweatt as a brother-in-arms. “Read the briefs,” he told me. “It is irrefutable that the original civil rights movement was based upon the principles of color blindness.” In his view, today’s racial advocacy groups have drifted away from those color-blind principles — or, worse, advocate for them in some areas (police profiling, jury selection) while declining to apply them to college admissions. Indeed, Blum sees Sweatt and Fisher as mirror images: two victims demanding equal treatment before the law.

Not everybody agrees. Gregory J. Vincent, a tall, burly man who served as U.T.’s vice president for diversity and community engagement, gently demurred. “Blum is a smart man,” he told me, “but he’s dead wrong in this particular instance. What Heman Sweatt was fighting was state-sponsored segregation. That is vastly different than what Abigail Fisher or any other student faced when she applied to the University of Texas.” Fisher would not, he noted, have been guaranteed admittance if she had been black.

Blum, however, insisted that Fisher’s record (including a 3.59 G.P.A., cello playing, and 1180 on the SATs) made her the “ideal plaintiff.” He is no less enamored of Texas A&M University, in College Station, where I teach English. In a 2013 op-ed for the Houston Chronicle, he discussed the impending Fisher decision, noted that a hundred colleges had filed amicus briefs in support of U.T., and praised A&M for its refusal to climb on the affirmative action bandwagon. He also saluted Robert Gates, the former secretary of defense who was installed as A&M’s president shortly before I arrived as an assistant professor in 2002, and who established the school’s current approach to diversity.

I should confess that when it comes to affirmative action, I spent much of my early life in a fog of ignorance and embarrassment. My first encounter with race-conscious admissions took place not long after I arrived in the United States from Jamaica at the age of eight. The year was 1968, and my mother took me to an elementary school in Gallup, New Mexico, to get me enrolled. Without being tested or spoken to, I was promptly assigned to the first grade rather than the third. This action on the school’s part — presumably a comment on my academic potential — was affirmative as hell, but it wasn’t what the Kennedy and Johnson Administrations had in mind when they committed themselves to sandblasting away the effects of slavery and discrimination on American life.

Only years later, when my family moved into a big rental house that came with my father’s job in an otherwise unaffordable Chicago suburb, did I encounter the Kennedy–Johnson version of affirmative action. By then, I had skipped ahead to the proper grade. One day I arrived at school and discovered that we were taking something called the PSAT. I did well enough, it turned out, to earn a flurry of come-hither letters from big-time schools. Convinced that this warm welcome was entirely due to my test scores, I was puzzled a year or so later by news of the 1978 Bakke case. The Supreme Court had affirmed Allan Bakke’s claim that he had suffered “reverse discrimination.” But it simultaneously declared that colleges could use certain race-conscious admissions procedures, and my response was: Why would anyone need that?

Since then, it’s safe to say that I’ve been schooled — considerably. Not only have I earned a doctorate and made my way through the Darwinian terrain of the academic job market, I have also come to understand Thurgood Marshall’s dissent to the Bakke decision:

It is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.

In other words, I have come around to the idea that regardless of class, black Americans are swimming with weights on. But how heavy and consequential are the weights? And to what extent does their downward pull cloud one’s thinking?

These are not questions that troubled me the moment I set foot on A&M’s football-mad, tradition-hungry campus. Indeed, to this day, in the classrooms where I encounter undergraduates — or graduate students who have yet to imbibe the dark arts of academic politics — the atmosphere is reliably welcoming.

Yet every few years, some peculiar expression of racial contempt goes off like a stink bomb. In 2003, for example, the local chapter of the Young Conservatives of Texas — an organization that counts Rand Paul and Jeb Hensarling among its alumni — held a bake sale to protest the hiring of a vice president to oversee institutional assessment and diversity. Goodies were offered to whites for 75 cents, to Latinos for 25 cents, and to blacks for 10 cents. The moral of the story seemed to be that African Americans needed to be only 13 percent as qualified as white males to earn admission to a university or get a job. Since I had surely been hired in part to help diversify the A&M faculty, this bake-sale business touched my honor, and I became a fellow traveler of an impromptu faculty group formed to affirm the value of difference.

The next stink bomb went off in 2006, when a video showing a white student in blackface pretending to be beaten and sexually abused by another white student appeared on the internet. Ten years later, when a number of fresh-faced high-school kids were brought to campus as part of A&M’s minority-recruitment program, they encountered more than one Aggie who told them to go back where they came from, adding racial slurs for emphasis. Another Aggie asked the visitors what they thought of her Confederate-flag earrings.

A stink now obscurely scenting all of America came to A&M last winter in the person of Richard Spencer. The white-nationalist firebrand spoke on campus on December 6, having been invited to address the university by a local right-wing crank and alumnus who rented a hall. The university rushed to say that it had nothing to do with the invitation. What’s more, the administration organized a series of counter-events, including an oversize Aggies United event in that holy of holies, the football stadium.

The day and hour of Spencer’s speech was greeted by hundreds of impassioned protesters, the rally in the stadium, and a counter-lecture on campus racism, whiteness, and the First Amendment by the sociology professor Wendy Moore. Spencer was unfazed. He told his audience (ironically, the most diverse I have ever seen at Texas A&M) that he’d heard the Aggies United event was a sparsely attended failure: It could not drown him out.

For the next two hours, he turned on his version of charm, telling the mostly hostile crowd that their hisses meant “I love you.” Still, the rage festering just beneath the surface oozed out at odd moments. At one point, Spencer went after a geneticist wearing a beat the hell out of racism T-shirt. Having already declared “racism” a “false word,” Spencer all but challenged him to a fight, calling him a “white coward” who couldn’t beat the hell out of anything: “Look at how fat you are.”

Spencer stumped for his vision of a nation created and defined by whites — an America now threatened by its mad fixation on diversity, which blesses things like affirmative action and immigration by non-Europeans. “This is what George Soros and Mark Zuckerberg want,” he said. “They want an undifferentiated global population — a raceless, genderless, identityless, meaningless population . . . consuming drugs while watching porn on V.R. goggles.”

The remedy to this “passive nihilism,” he insisted, was Donald Trump. The incoming president had a sense of what made “the white race truly unique and truly wonderful — that striving toward infinity. However vulgar he may seem, he had a sense of it. . . . That’s what made Donald Trump an alt-right hero.”

This exalted notion of whiteness is also what inspired the crowd that came out to listen to Spencer, to heckle him, to ridicule him, and to offer questions hot as coals that, in a few instances, he didn’t dare set foot on. The gathering, which included a vocal sprinkling of Spencer fans, was itself an argument for the idea that diversity is an educational tool. I can’t help hoping that some of his supporters might have had their axioms shaken simply by this exposure to life outside the overwhelmingly white hothouses of the “alt-right.”

When Sandra Day O’Connor made her prophecy in 2003 and reopened the door to affirmative action in Texas, which had been closed for the past seven years, Robert Gates tried to pursue a middle path. He announced that A&M admissions would remain race-blind but would be accompanied by extra efforts to recruit and fund qualified minority students. Even this he did with caution: “Some will criticize our special efforts to reach out to students in Texas who are Hispanic, African-American, Asian-American, or economically disadvantaged.”

Yet Gates had now stumbled into a whole new briar patch. The fiercest backlash he faced was from black state lawmakers who condemned him for dismissing affirmative action while leaving legacy admissions untouched. In the view of its critics, legacy was stealth discrimination. Gates at first claimed to have little knowledge and no gut feeling about the program, which in 2003 had tipped the scales in favor of 321 whites and just thirty-three minority candidates. Still, he ended legacy admissions in January 2004, saying that such a leg up amounted to an “obvious inconsistency in an admissions strategy based on individual merit.”

So ended that chapter in a cultural duel, quite literally an affair of honor, that has been fought over and over again, in every sort of venue, ever since Brown v. Board of Education made desegregation the law of the land. A&M’s own battles in this regard have been amazingly convoluted. In 1993, six years after an office of multicultural services was established, one campus publication boasted about “the diverse group of students who attend A&M.” But that great leap forward was owed in part to none other than Clarence Thomas, the tortured Supreme Court justice who now sees affirmative action as a sort of malignant tumor. In 1982, when he worked in the Department of Education’s Office for Civil Rights, Thomas demanded that Bill Clements, the governor of Texas, adopt more ambitious goals for increased minority representation on campuses in his state.

Thomas’s earlier role in pushing affirmative action in Texas, and then his subsequent role in the quest to annihilate it, underscore the extent to which the policy entails a duel within and between souls. Indeed, in his autobiography, Thomas rages over having been admitted to Yale Law School with the aid of affirmative action. “I sought to vanquish the perception that I was somehow inferior to my white classmates,” he writes, “by obtaining special permission to carry more than the maximum number of credit hours.” Yet none of these labors allowed him to “escape the stigmatizing effects of racial preference.”

Stigma and dishonor touch Thomas like drops of acid. The Supreme Court confirmation hearings during which Anita Hill accused him of sexual harassment reportedly left him scarred with humiliation and bitterness — a humiliation into which, determined to restore his own honor and that of those he sees as like himself, he dips his pen when he writes on race in cases like Fisher. Affirmative action programs, he insisted in one 1995 opinion, teach white Americans that “because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence.” Such programs, he insisted, “stamp minorities with a badge of inferiority.”

The affair is bigger than race. After all, the great motivator for colleges in their drive to make admissions competitive is what the economist Anthony Carnevale calls “prestige among their own ranks”: honor. But the pursuit of honor leads inexorably back to race. Prestige hunger among colleges means ever-higher admissions standards, and higher standards favor the children of college-educated, economically comfortable parents — in short, white kids.

Carnevale, who now heads Georgetown’s Center on Education and the Workforce, tried to address this racial disparity back in the late 1990s, when he was a vice president at the Educational Testing Service. Then as now, many accused the SAT of functioning as a quasi-scientific racial sorting machine — a charge that he reluctantly accepted. To level the playing field, Carnevale headed up the creation of a so-called Striver’s Index, which would factor into the student’s SAT score up to fourteen nonacademic data points, including race, family income, and school district.

“When you look at a striver who gets a thousand,” he told the Wall Street Journal in 1999, “you’re looking at someone who really performs at a twelve hundred.” Crucially, Carnevale told me, strivers are people all Americans want to celebrate. A Striver’s Index is not a racial corrective — it is an Index of Americanness.

These days, however, Carnevale is more concerned by attempts to expel race from the conversation — to conclude that in a postracial America, the playing field is already level. He understands the temptation: We are addicted to denial and to the damaging shorthand of racial stereotypes. But our knowledge, however carefully suppressed, will come back to haunt us. “There is the old joke,” he told me, “that a human being is sort of a smart monkey riding on an elephant — the elephant being all the subconscious stuff we don’t know about.” Affirmative action is one of the mice that frightens the elephant. As for the vagaries of race, even the monkey seems to know little about them.

With foes like Thomas, Gratz, and Blum (who has launched new attacks on affirmative action at U.T., Harvard, and the University of North Carolina), and with Trump having already appointed a Supreme Court justice, proponents of the policy have their work cut out for them. They have had some cause for hope, though. In June 2016, the Supreme Court ruled on Fisher v. University of Texas, affirming the school’s race-based admissions policy in a manner that caused Justice Samuel Alito to exclaim in his dissent, “This is affirmative action gone wild.”

When the ruling came down, affirmative action advocates took steps to reinforce the majority opinion. In an op-ed that appeared in the Austin American-Statesman, Gregory Vincent wrote that Fisher was not only academically unqualified for admission to U.T. but displayed a sense of entitlement that, writ large, was damaging to society.

Ironically, the state’s earlier attempts to grapple with the elephant of race by meritocratic means had made the competition tougher for Fisher. This is because in 1997, Irma Rangel, the first Mexican-American woman in the Texas legislature, pushed through a bill that made the top ten percent of every Texas high school class eligible for admission to any state college. The flood of top-ten-percenters of all races was such that U.T. Austin was soon pleading for more discretion to pick a budding Beethoven or Balanchine or Steve Jobs who might not have the highest G.P.A. Fisher, whose record was nothing to sneeze at, had nevertheless failed to make the top ten percent at her high school. When U.T. rejected her, she sued, confident that minority students with lesser records had been admitted.

Vincent, who is now the president of Hobart and William Smith Colleges, questioned this assumption. The sense of entitlement that he condemned in his op-ed, he said, had to do with Fisher’s conviction that “her spot was taken by a minority student, despite the fact that there were white students admitted with lower grades, and there were black and Latino students with higher grades who were denied admission.” Race, he insisted, “was not the single factor, and we did it in a constitutional way.”

Still, Fisher’s focus on minority kids at her high school underscores an affirmative action paradox. Part of the reason why the policy is so much more violently opposed than legacy admissions (which Clarence Thomas finds unworthy but nonetheless constitutional) is that some whites seem to feel, deep down in the elephant part of themselves, dishonored when blacks are admitted in their stead. But they appear not to feel dishonored when whites with similar or lesser records are admitted. This is part of the historical river on which our psyches float, and in which they are sometimes submerged.

As the scholar Orlando Patterson has shown, one of the distinguishing features of being a slave is the fact of living in a state of dishonor and “social death.” The persistence of this dishonor — summed up in Supreme Court Chief Justice Roger Taney’s finding in 1857 that a black man “had no rights which the white man was bound to respect” — is epitomized in our time by mass incarceration and by the daily abuse that regularly climaxes in police killing blacks with impunity in Cleveland, St. Paul, New York City, and beyond.

Despite its consequences for people like Fisher, Irma Rangel’s top-ten plan may be the political equivalent of the golden mean in these rancorous times. “What’s interesting to me is that the politicians figured this out before the economists and the lawyers,” Carnevale said. They also seemed to grasp that “the public is much more sympathetic to class than race.” The solution, Carnevale told me, is “so perfectly American,” and also a form of evasion. “Race,” he asserted, “is a secret we keep from ourselves.”

Indeed, race in America has been more than anything else a religious notion, a sort of Holy Ghost, terror tangled with desire wrapped in myth. Richard Spencer himself spoke of race as America’s primordial white root, something beyond mere genetics. Having been raised in a household that taught me that skin color had little or no meaning, I had to go back to racial first grade to grasp the full importance of the phenomenon in American life. I had help, of course. Back in Gallup, a Native American kid asked me whether it wasn’t a bummer to be black. Later on, in more rarefied intellectual circles, I often banged into assumptions about what I should or could think, and of course I have had the standard encounter with the white woman gone rigid with fear as I walked past her.

But what has affected me most is the double legacy of the Bakke case. On the one hand, most states still permit or even mandate the consideration of race in school admissions, and of race and gender in hiring. On the other, there is the lingering specter of reverse discrimination — a charge leveled, as we all recall, at Barack Obama, who had his Harvard transcripts demanded by none other than Donald Trump. Though no one has demanded my transcripts yet, and though I have never felt poisoned by an admissions letter in the manner of Clarence Thomas, I’ve struggled to refute stereotypes by avoiding even the tiniest misstep in my writing and teaching. The secret that America keeps from itself whispers in my psyche too. The question is, how do we stop that secret from metastasizing so profoundly in our collective unconscious that the self-knowledge we need to make changes becomes impossible?

Vincent takes O’Connor’s twenty-five years seriously, and sees the need for reforms beyond affirmative action, reaching down into the K–12 system — and beyond, into the history of de facto segregation by things as subtle as the construction of a highway bypass. Blum points to polls as proof that the country supports missions like his. Carnevale (who cites the same polls, but for opposite reasons) is unimpressed by affirmative action as a racial cure-all.

Whether under Donald Trump we can inch closer to Rawls’s original position is an open question. Blum, with his scorched-earth tactics, will surely have a major impact in shaping the answer. He is already advising U.N.C. to fold or face “years of expensive and polarizing litigation.” It knocks me off my chair that Blum knows his lawsuits might exacerbate racial polarization and is proceeding nonetheless. Additional ironies arise from a strategic shift: Instead of using whites as plaintiffs in his assaults on U.N.C. and Harvard, Blum has selected Asian Americans. I hardly need point out that this portmanteau identity includes subgroups with little need for affirmative action at this point, as well as subgroups who need it as much as ever.

“Were you denied admission to college?” is the question posed on Blum’s new website. “It may be because you’re the wrong race.” This language, I would argue, is pernicious: It allows a single factor to eclipse the entire admissions process. Harvard (where legacy is still alive and kicking) and many other schools claim to use a more complex method, one built overwhelmingly on nuance. But if a Jamaican kid helped by affirmative action has learned anything, it is that America abhors a nuance — and that complexity is often seen here as a plot against Mom, apple pie, and perfect plaintiffs. ?

is the author of Understanding Etheridge Knight and The Traveling Queen, a collection of poems.

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