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With Justice Barrett, Is the End Near for Racial Preferences?

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With Justice Barrett, Is the End Near for Racial Preferences?

The Wall Street Journal October 28, 2020
Legal ReformOther

A new majority may stop equivocating on affirmative action, which has impeded black mobility.

During her confirmation hearings, Justice Amy Coney Barrett faced many more questions about ObamaCare than about affirmative action, though her views on the latter are potentially far more consequential.

The racial divisions that have plagued the U.S. for decades reached a head this summer with nationwide protests following the death of George Floyd. This type of social unrest has long been nurtured and exploited by black leaders and their political allies, who have turned the hallowed civil-rights movement of the 1960s into a lucrative racket today. These efforts have been abetted by Supreme Court decisions that hem and haw over the legality of racial-preference policies.

The Civil Rights Act of 1964 plainly mandates equal treatment of individuals regardless of race, and the addition of Justice Barrett makes it more likely that the court will finally interpret the law to mean what it says. Nevertheless, our experience with other Republican-appointed justices who later moved left—from Sandra Day O’Connor to David Souter to Anthony Kennedy—urges caution.

In its earliest iteration, affirmative action in practice meant outreach to low-income blacks. It was argued that the policy was necessary to compensate for past injustices and would one day no longer be necessary. Over time, however, quotas and set-asides replaced simple outreach, and racial double-standards in college admissions were defended on grounds that they enhanced “diversity” on campus.

Affirmative-action benefits were also extended to other groups, including recent immigrants from Latin America who had suffered no past discrimination in the U.S. As the country became steadily more diverse, the Supreme Court kept punting on the validity of these color-conscious policies, and colleges and other institutions doubled down on a racial spoils systems. What could possibly go wrong?

In a 2003 Supreme Court decision upholding racially discriminatory admissions policies at the University of Michigan, Justice O’Connor wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” It was a tacit acknowledgment that these policies weren’t working and, 17 years later, there’s little evidence that anything has changed. In the popular imagination of many on the political left, today’s black middle class is a direct product of the civil-rights gains of the 1960s and the affirmative-action policies that followed. But the data tell a different story.

The “progress toward equality for black Americans didn’t begin in 1965,” write Harvard political scientist Robert Putnam and his co-author, Shaylyn Romney Garrett, in their new book, “The Upswing.” “By many measures, blacks were moving toward parity with whites well before the victories of the Civil Rights revolution, despite the limitations imposed by Jim Crow.” Moreover, “after the Civil Rights movement, that longstanding trend toward racial equality slowed, stopped, and even reversed.” The emphasis is the authors’.

In the 1940s and ’50s, black-white gaps were not only shrinking in income, educational attainment, homeownership rates and other measures. The gaps were shrinking at unprecedented rates that have never been repeated, even during the subsequent era of affirmative action.

If anything, the evidence shows that racial preferences have coincided with slower black upward mobility. After the University of California system ended its race-conscious admissions policies in the 1990s, black graduation rates rose. A policy intended to increase the size of the black middle class was in practice limiting its growth. It would be difficult to identify a government program coming out of the 1960s that did more to help blacks than what black were doing to help themselves before the program.

For readers of conservatives like Charles Murray, Walter Williams, Thomas Sowell and Stephan and Abigail Thernstrom, this history is well known. But it’s nice to see it chronicled by someone of Mr. Putnam’s standing on the political left. It’s a history that seriously undermines the notion that racism is an all-purpose explanation for social inequality, or that blacks can’t progress without special treatment, which is why black politicians and civil rights activists seldom bring it up.

What affirmative action has succeeded in doing is stoking racial conflict. It keeps race front and center in our policy debates, regardless of relevance. Lagging groups are told that others have gotten ahead at their expense.

High schools that cater to overachieving students are under pressure to drop entrance exams and adopt racial and ethnic admission quotas. Colleges are sued for discriminating against Asian-Americans the way they once discriminated against Jews. Corporations are shaken down by “diversity consultants” who claim that the only possible explanation for racial imbalance in the workplace is racial discrimination.

Racial preferences have also served to diminish the achievements of blacks who have succeeded, such as the person who swore in Justice Barrett on Monday, Justice Clarence Thomas. The sooner these two can get to work applying their originalist jurisprudence to affirmative action, the better off we’ll all be.

This piece originally appeared at The Wall Street Journal (paywall)


Jason L. Riley is a senior fellow at the Manhattan Institute, a columnist at The Wall Street Journal, and a Fox News commentator. Follow him on Twitter here.

Photo by Tasos Katopodis/Getty Images