Racial discrimination and Harvard’s invidious boxes

Remember the liberal outrage over Sen. Jesse Helms’ “Hands” ad in his 1990 Senate campaign against Harvey Gantt? Some credit the ad for Helms’ come-from-behind victory.

The 30-second spot featured the white hands of a frustrated job applicant crumpling a rejection letter. “You needed that job,” says the narrator, “and you were the best qualified. But they had to give it to a minority because of a racial quota. Is that really fair?”

The ad said Mr. Gantt, who is African-American, advocated racial quotas. It was politics at its rawest, and Mr. Gantt accused Mr. Helms of trying to “divide people along racial lines.” He denied that he was in favor of quotas.

Cut to 2022. Minneapolis Public Schools has negotiated a contract with the teachers’ union that includes this language: “If overstating a teacher who is a member of a population underrepresented among licensed teachers at the site, the district shall overstate the next least senior teacher , who is not a member of an underrepresented population.” In plain English, writes Deroy Murdock in the Daily Mail, it means “fire Whitey first.”

The Minneapolis contract is ugly stuff, but very appropriate as the Supreme Court prepares to hear lawsuits in October by Students for Fair Admissions accusing Harvard and the University of North Carolina of racial discrimination in admissions. In 1990, Helms’ ad was denounced as false and incendiary. These days, the discrimination it highlighted is fast becoming standard practice, and not just in Minneapolis and at UNC or Harvard.

Such discrimination was easier to rationalize, both practically and morally, when the issue was literally black and white. The idea was that the new racial preferences—in university admissions, hiring, and contracts—were a long-overdue leveling of the racial scale. The Minneapolis district claims it is only trying to “remedy the continuing effects of past discrimination.”

But America today is no longer so neatly divided between black and white, or even between the white majority and all minorities. Asian-Americans are an even bigger target than whites because their high performance leads them to be “overrepresented” on a liberal scale. This achievement is an embarrassment to the progressive narrative, so much so that they are often lumped in with whites or classified as “white-adjacent” to avoid acknowledging that Asian-Americans are a minority—with their own experience of officially sanctioned bigotry ( eg the internment camps for Japanese-Americans during World War II and the Chinese Exclusion Act of 1882).

Unfortunately in Grutter v. Bollinger (2003), the court declared that high schools’ use of race to promote diversity was constitutional. After her majority opinion, Justice Sandra Day O’Connor indicated that this would be temporary. She could not imagine that affirmative action would still be necessary 25 years from now. After she retired, she said that might be an understatement.

The Harvard and North Carolina cases now allow the court to once and for all rid the country of an unfair practice that leaves only a heightened sense of anger in its wake. If the Roberts Court would simply declare that racial preferences violate both Title VI of the Civil Rights Act and the 14th Amendment, it would be a huge victory for a colorblind America.

Still, one of the more persuasive friends of the court argues that such a decision would still leave unfinished business. Filed by David Bernstein of George Mason University’s Antonin Scalia Law School, it suggests that not only are racial preferences arbitrary, unfair and unconstitutional, so are the racial boxes schools use to classify students.

Take “Asian,” a label that covers 60% of the world’s population—lumping Indians with Chinese and Cambodians and Koreans. They have almost nothing in common, from religion to language to culture.

Same with “Hispanic.” Harvard and UNC, Mr. Bernstein writes, cannot “explain why white Europeans from Spain, people of native Mexican descent, people of Afro-Cuban descent, and South and Central Americans, who may be a combination of European, African, and indigenous by descent, are grouped together as ‘Hispanic’.”

Additionally, because this is largely self-reported, the incentive is for fraudulent or exaggerated claims. A few years ago, Vijay Chokal-Ingam — older brother of “The Office” star Mindy Kaling — didn’t think he had the grades to get into medical school as an Indian-American. So he checked the box on the African-American application—and, hey presto, he was accepted at St. Louis University School of Medicine. More famously, Elizabeth Warren had to apologize for identifying as a Native American.

It is probably too much to expect the judges to notice how toxic and unscientific our race boxes are while throwing out Bigger. But is it too much to hope that a student could fill out a college application without worrying that his grades and hard work might be for naught if he checks the wrong race box?

Write to mcgurn@wsj.com.

Review and Outlook: The woke get a wake-up call as voters recall three school board members to focus on social justice issues over reopening classrooms (17/22/22). Photos: Bloomberg News/Constanza Hevia H. for The Wall Street Journal Compiled by Mark Kelly

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