Why Dems Should Hope for the End of Affirmative Action

The Supreme Court will hear arguments today in two cases that could end affirmative action. While not a single Democrat will say it out loud, this is what they should be hoping for. Like abortion, affirmative action has been a millstone around the party’s neck for over half a century. And, like abortion, this conservative Supreme Court may do them a favor by cutting it loose.

I know. You demand an explanation. Here it is.

Roe v. Wade was a political disaster for Democrats. While it’s true that a consistent two-thirds or so of Americans said they supported Roe, all the passion was on the other side. For those of us who supported abortion rights, we were lulled into the notion that this was settled law and we could worry about other issues. For those who thought abortion was murder, Roe lit a fire. They worked tirelessly to elect politicians who would, one day, give them a Supreme Court that would overturn it. And that day came last summer. Now, that Supreme Court is delivering all manner of other very conservative rulings and, given the ages of the justices, it probably will keep turning out those rulings for a generation. Bonus for them.

But now the political tables are turned. Immediately following the Hobbs decision it looked like abortion could be so potent an issue for Democrats that it might even turn the red tide blue. That doesn’t seem to have panned out for this cycle, but it’s likely that abortion will remain a net plus now for Democrats for many elections to come.

Affirmative action has been a similar drag for Democrats, though in a different way. Unlike Roe, AA is deeply unpopular with the American people. A Pew Research poll from earlier this year found that three out of four of us oppose it. But within the party it is dogma. No serious Democratic pol may so much as question it. It’s as if the party is saying, “Here’s an anchor. Tie it around your neck. Now go swim and good luck!”

So, if SCOTUS kills affirmative action, eventually Democrats can stop defending it. Of course, they’ll have to wail for awhile, but over time it will become a non-issue because it will be unconstitutional. Affirmative action is unpopular, but internal politics forced Democrats to be for it. When it’s gone they’ll be free of it and their chances of winning more elections will improve. That’s the politics and they’re pretty straightforward.

The merits are more complicated. Let’s start with some background. Affirmative action isn’t one thing or one law. It started with an executive order from the Kennedy administration in 1961 and it was pretty short and simple: “The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”

This only applied to federal government contractors and it just required them not to discriminate. But it’s also hazy. What did it mean that contractors had to take “affirmative action” to assure that discrimination didn’t take place?

Since then, a host of federal, state and local policies and programs have sprung up under the rubric of affirmative action. In Madison we had a whole department dedicated to it (it’s now a part of the Department of Civil Rights). Its main purpose was to make sure that pools of candidates for city jobs were as diverse as possible and that minority and women-owed businesses had a fair shake at getting city contracts. The department also kept track of how we were doing in terms of the racial and gender make-up of the city’s two dozen agencies. When I was mayor I thought those were fine ideas and I was supportive of them.

But there’s a world of difference between assuring that everyone has an equal chance at a job or a contract and actively discriminating on behalf of favored groups. And that’s the central problem here. In the public mind, AA can sound like reverse discrimination, even when it’s not that at all.

But in recent years the hard-left has taken an already unpopular, if misunderstood, concept and endeavored to make it the very truly awful thing the general public thought it was. It has become fashionable on the hard-left to be proudly in favor of active discrimination on behalf of “historically marginalized groups.” The idea is to be aggressively unfair, presumably for some period of time, to make up for centuries of unfairness that have come before.

There are at least three problems with the hard-left approach to affirmative action. First, it is clearly at odds with the notion of equal protection of the laws in the Fourteenth Amendment and with the common sense American values of fair play. As everyone’s mother should have taught their kids, two wrongs don’t make a right. Second, even if you buy into this idea of a limited period of reverse discrimination and reparations, when can it end? When do we decide that we’ve discriminated enough, that the accounts are balanced and that we can go back to treating everyone the same? And third, who gets to decide?

The cases before the Court involve what is essentially reverse discrimination in the citadel of hard-left activism, higher education. In a nutshell, Harvard and the University of North Carolina have been using a clever dodge to get around previous Court rulings that prohibited racial quotas, but allowed a consideration of race in the interest of campus diversity. Harvard has created a murky and highly subjective “personal rating” and then assigned high scores for it to Black applicants to achieve a much higher Black admission rate than it would have under other more objective standards. It’s clearly a dodge to achieve the racial quotas that would be unconstitutional if it were done upfront.

And the notion of campus diversity is questionable at best. College campuses are some of the most intolerant places in America. Diversity of thought is what should be prized there, but taking a conservative stand — on affirmative action, let’s say — could get you cancelled pretty quick.

Finally, there’s reason to doubt if any of this actually works to create more diversity even on a superficial basis. Michigan does not allow the consideration of race in admissions while Wisconsin does. But, as a percentage of the campus population, the University of Michigan has three times as many people of color as the Madison campus and their diversity is increasing while Madison’s is falling. And the University of California system became more diverse after race conscious admissions policies were banned there.

In any event, consideration of race in campus admissions is almost certain to be struck down. The only real question is how far the Court will go in reversing the wide range of affirmative action policies and programs beyond those in higher education. I would hope that some efforts, like those at the City of Madison, will be able to continue.

Here’s what’s counterintuitive in all this: the conservative Court is giving progressives a gift. If you want a more progressive country (and I do) then you’ll want to elect more Democrats. But you can only do that if the party’s earned toxic image among a wide swath of voters can be erased. Freeing Democrats from a requirement to express loyalty to a deeply unpopular policy is an important step in that direction. In this way, and ironically enough, a very conservative high court may pave the way for a more progressive nation in the long run.