By Chris Satullo
Three of my favorite words in the English language – at least when said to me – are: You were right.
Still, sometimes it simply sucks to have been right.
At the moment, the Supreme Court of the United States is mulling whether to consider a case called Students for Fair Admissions vs. Harvard. It’s a lawsuit brought on behalf of Asian American students who claim that Harvard’s practices around affirmative action admissions favor Blacks at their expense.
If the court does take on the case – that sound you hear is the court’s conservative majority salivating and cracking its knuckles in anticipation – it will revisit its rulings in two big educational affirmative action cases decided in 2003: Grutter v. Bollinger and Gratz v. Bollinger. Both cases stem from the 1990s. Both challenged race-conscious admission policies at the University of Michigan.
Slicing the baby messily in half, the high court decided the two cases differently. In Gratz, a 6-3 majority ruled in favor of the white plaintiff, who had been denied her wish to matriculate as an undergraduate Wolverine. The court said Michigan’s undergraduate admission policies were unconstitutionally blunt about their aim to admit more Black students. In that way, the court ruled, the policies violated Jennifer Gratz’s rights by using her race to discriminate against her.
But, in a 5-4 vote, explained in a Jesuitically nuanced decision by Sandra Day O’Connor, the court upheld the Michigan law school’s vaguer approach, which cloaked its efforts to help Black students inside a broader pursuit of “diversity” as a key campus value. In earlier cases touching on admissions, Justice Lewis Powell had pinpointed this “diversity as a good in itself” riff as one way for affirmative action on campus to thread the constitutional needle.
After the Bollinger decisions, you simply could not argue in court that Black students deserved a boost in the admissions race to make up for the systematic screwing that American’s educational policies had been giving them, their parents, their grandparents, their great-grandparents, their great-great-grandparents and so on ever since the first one-room schoolhouse went up.
You could only argue that race was an allowable factor in the context of the court-approved search for the Holy Grail of diversity – which was framed as benefiting white students as much as anyone else and thus constitutionally maybe-sort-of OK.
Flash back to 2003, when I was editorial page editor at the Philadelphia Inquirer. In the months between the high court’s hearings in the Michigan cases and the issuance of its rulings, the editorial board bestirred itself to offer its solemn, unsolicited opinion on the matters. A newspaper editorial board, in case you’ve never served on one, functions a little bit like a toy Supreme Court – though its decisions are spectacularly less impactful than those by robed justices. Pondering the cases, we soberly reviewed briefs from stakeholders, interviewed experts, then convened for a deliberation that would lead to a majority opinion. I, as editor, would assign someone to write up that opinion for publication – just as then-Chief Justice Rehnquist assigned O’Connor to write Grutter and himself to write Gratz. When it came time for the board to discuss the Michigan cases, I had a lightbulb-over-the-head moment. Excitedly, I pitched my clever idea to my colleagues.
Which is when things got heated.
Some context: It was clear then – and is even more apparent today – that conservative justices have a bugaboo about racial tests for anything. They live in a dream world where America supposedly has eradicated all taint of racial bias from its government, its institutions, its workplaces. (To her mild credit, O’Connor in Grutter conceded that some traces of systemic racism had endured into 2003. Her blithe estimate was that in, oh, about 20 years, i.e. 2023, racism would be fully erased from American life and distasteful remedies such as Michigan Law’s diversity finagle would become unnecessary. How’s that prediction looking, Boogaloo Boys?)
To overrule any hint of a desire to take, yep, affirmative steps to counteract centuries of racial bias in law, hiring, education and politics, these robed conservative activists perform a kind of judicial jujitsu.
They take the principle of equal protection and the prohibitions on racial discrimination contained in the 14th and 15th Amendments – and their modern elaborations in the 1964 Civil Rights Act and 1965 Voting Rights Acts – and flip them neatly on their head. Since, in their Federalist Society Fantasyland, discrimination against Black people is a thing of the past, the bias they think judges should now be vigilant to squelch is the discrimination against white people that occurs when misguided liberals try to put a finger on the scales to help Blacks.
Noticing how popular that jujitsu had become in conservative circles by 2003, I proposed this end run to my editorial board colleagues:
Root the affirmative action argument in class, not race. Argue that, not only for the sake of diversity and its benign effects on campus life, but also to promote the American dream of upward social mobility, colleges should be allowed to reserve spots in their incoming classes for people from the working and struggling classes of America – say, the lowest two quartiles of the income scale.
This, I argued, would have nearly the same impact on opening college access to Black students as explicitly race-conscious programs. After all, then as now, Black median household income lagged behind every other ethnic group’s. I then added, with a beaming, aren’t-I-clever? expression, what I thought of as my clincher: This form of affirmative action would also benefit and build a political constituency among the very working-class whites whose defections from the Democratic party had given us the Reagan, Bush 41 and Bush 43 presidencies.
The Hindenburg had a more successful flight than my trial balloon did with my colleagues.
Leading the chorus of appall was my friend Acel Moore. If you don’t know Acel’s name, you should. He was a pioneer of Black presence and Black achievement in America’s mainstream newsrooms. A proud son of South Philly, he started as a copy boy at the Inquirer and by 2003 was a Pulitzer Prize-winning masthead editor at the paper, writing a twice-weekly column for the op-ed pages that I ran. Ace and I had a fine relationship. That day, though, he breathed fire at me.
He couldn’t decide which of my idea’s two big flaws he hated more. One was the way it danced away from any discussion of how America’s history of systemic racism might demand a race-based remedy that explicitly and justly favored Blacks. To him, mine was a grievous, historically illiterate finesse. Second, my plan would deny any help to his own beloved daughter. Sure, both Ace and his wife were now distinguished journalists, able to afford a home in the ‘burbs and private school for their kid, but should they be punished for having endured the abuse and extra work they’d had to endure to become so successful?
Respectfully, because I loved and admired Ace, I argued back that, no matter the justice of his historic argument, this Supreme Court and the ones likely to follow were just not going to buy it. They were not going to allow affirmative action on the basis he preferred. So, wouldn’t it be wiser to grab the half-loaf of class-based practices now, while it was still available? As for his girl, she was a brilliant kid who was destined for an elite college anyway. Why not reserve the leg up for working classes kids of any color, thus building a more stable base of political support for the very idea of a leg up?
Ace was unmoved. So were my colleagues. No editorial articulating my fantastical notions was ever published.
My view was more wrong than right on the history. It was more wrong than right morally. But it was dead right about the trajectory of the high court and the politics.
In 2016, as America was in the process of electing as president a race provocateur, sociologist Arlie Hochschild published Strangers in Their Own Land, an exploration of the values and attitudes of Tea Party members in Louisiana, most of them working-class folks of the type whose penchant for voting against their own economic interests has long mystified liberals. A key metaphor Hochschild used to explain their outlook was “cutting in line.” These white Americans feel that liberals let other people (e.g. read Blacks) “cut in line” in front of them, even as they work hard and wait patiently for their crack at The Dream.
For these folks, affirmative action serves as the epitome of “cut in line” syndrome, a set of special benefits they sense will never be offered to the likes of them.
But it would have been offered to them under class-based affirmative action.
Would President Donald Trump have happened if 20 years of class-based affirmative action had chipped away at white, working-class resentment of the type Hochschild documented?
Meanwhile, today’s chief justice, John Roberts, is a master of judicial jujitsu, emperor of the aforementioned Federalist Fantasyland, who calls any race-conscious practices “a sordid business” and makes it a personal mission to eviscerate the Voting Rights Act. His colleague Samuel Alito goes apoplectic at any faint sign of affirmative action, which he calls “berserk.” All the recent Trump appointees to the bench have long records of following in John and Sam’s footsteps on this topic.
When this Harvard case gets decided, affirmative action in American education will, I fear, be dead.
What I told the estimable Acel Moore, bless his soul, about the court’s direction and how the politics would play out was, it turns out, exactly right.
Never have I hated more being right.
Background and context for this essay came from an article in the Aug. 2 New Yorker magazine, “The Diversity Verdict,” written by Nicholas Lemann, chief chronicler of America’s test-driven meritocracy.
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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia