Something strange happened on Wednesday, when the Supreme Court heard oral arguments in Fisher v. University of Texas. For about an hour and twenty minutes, seven justices — Justice Kagan recused herself; Justice Thomas was silent, as expected — and three lawyers debated the finer points of affirmative action without even once mentioning racism.
Nor did the words “white privilege” cross anyone’s lips.
Whatever the outcome of the case — in which a young woman, Abigail Fisher, is complaining that she was denied admission to the University of Texas, Austin because she is white — the damage is already done.
Crystallized in these oral arguments is virtually everything that is wrong with how Americans address racism; specifically, that we don’t.
Instead, we promote diversity. While racism was ignored in the arguments, the words “diverse,” “diversity,” and “diversifying,” were uttered forty-nine times. According to the Supreme Court, the purpose of affirmative action in higher education is to achieve diversity in the classroom. This is wrong. The purpose of affirmative action in all contexts is to tip the scales in favor of people of color — especially African Americans — so as to counterbalance the unfair advantage that comes with being born white.
This advantage is easy to see. According to the government’s official figures, 7% of whites are unemployed, compared to 13.4% of blacks. The median net worth of blacks is less than one tenth that of whites. If you’re black, there’s a far greater chance you’ll go to prison than if you’re white. And punishment doesn’t end at the penitentiary gate: felon disenfranchisement laws ensure that one in eight black men can’t vote, reducing the political influence of blacks generally. Blacks are more likely to drop out of school and about half as likely as whites to have earned bachelors degrees. On average, being black means you have five fewer years to live.
This is what racism looks like in our supposedly post-racial society. A glance at the aggregate numbers should dispel the illusion that racism is a product of individual racists. White privilege and black disadvantage persist even though Bull Connor is not prowling the streets of Birmingham with his fire hose.
But don’t tell this to the judges or the lawyers on either side of the latest affirmative action case. Racism is not on their clouded radars. Instead, as Bert Rein, arguing for the plaintiff, put it, the University of Texas’s affirmative action program is a “quest for diversity.” His sparring partner Gregory Garre agreed, describing “the university’s interest of assembling a broadly diverse student body” as “indisputably compelling.”
When the Court last took up this question in 2003’s Grutter v. Bollinger, it concluded that colleges and universities could use race preferences in order to establish a “critical mass” of minority students so that they would not feel racially isolated or as though they are “spokespersons for their race.” At the same time, the Court barred universities from establishing quotas for minorities, preventing schools determining what a critical mass might actually be.
From this firm foundation of contradiction, the judges and esquires proceeded in the direction of nonsense.
“If you’re in a state that is only 1 percent black that doesn’t mean that you’re not isolated so long as there’s 1 percent in the class?” Justice Scalia asked incredulously. “I wish you would take that position,” he told Rein, demonstrating precisely the compassionate sensibility we’ve come to expect from the lion of the Court’s right wing. If Scalia were a Buddhist, he’d have past-life memories of Torquemada.
Perhaps surprising, Justice Sotomayor was united in Scalia’s cause. “You can’t seriously suggest that demographics aren’t a factor to be looked at,” she said, grilling Rein.
Chief Justice Roberts — entirely reasonably, considering the impossible demands laid out in Grutter — asked Garre, “When will we know that you’ve reached a critical mass? . . . Grutter said there has to be a logical end point to your use of race. What is the logical end point?”
By abandoning the fight against racism and replacing it with a goal of promoting diversity, the courts, with the assistance of affirmative action advocates, have stripped the policy of its purpose and condemned it to failure or incoherence, or both.
Diversity goals don’t combat racism. They are a tool for submerging race. Diversity goals exist to make racial identity less pressing — to prevent isolation and being made to feel a spokesperson. The word “comfortable” was actually used in these arguments — as in racial difference is uncomfortable, so let’s make sure it’s not so noticeable. Diversity is a means of making racial difference disappear.
This is what Americans seem to want: to pretend that racial difference and the advantages and disadvantages that accrue on the basis of it are some conspiracy theory. It’s why we are so quick to guard our tongues — to the point of expurgating now-unacceptable words from Huckleberry Finn — while emphatically refusing to do anything about the enormous gap in life outcomes between blacks and whites. One “nappy-headed hoes” will invite the wrath of the inflamed masses, but persistent chasms in wealth, educational attainment, health, and legal treatment are nobody’s concern.
Just ask Bert Rein, attorney at law. In the course of the oral argument, he called race preference “an abominable kind of sorting out” and, exercising an unexpected flair for the literary, described race as “this odious classification.” Rein knows that Obama is in the White House and it’s a new post-racial day.
Championing diversity is the good liberal’s compromise between, on the one hand, the right’s race hysteria, in which anything but blindness toward racial difference is construed as racism, and, on the other hand, actually doing something about racism via social welfare and widespread affirmative action that doesn’t apologize for itself. Fostering diversity demonstrates sensitivity toward the multiplicity of human experiences, with all the rainbows and handholding that entails. But rather than striving to eliminate the vast inequality that is a dimension of that multiplicity, the good liberal with diversity on the brain cherishes and validates deprivation. As Garre put it, “You . . . want people from different perspectives.”
One might argue that diversity is just a Trojan horse — a tactical alternative to anti-racism that sneaks substantive change in via the rhetorical backdoor. If it is, then the defenders of white privilege are on to the ploy. At the Supreme Court, the horse has been slain. Mere diversity is all the law will allow.