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.”

JFK started affirmative action, but it has become much more than he intended.

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.


Published by dave cieslewicz

Madison/Upper Peninsula based writer. Mayor of Madison, WI from 2003 to 2011.

11 thoughts on “Why Dems Should Hope for the End of Affirmative Action

  1. I’ve had the same thought for a while, having a conservative court is a long term gift to Democrats. It will cause a massive pendulum swing down the road and it will force a reckoning over the whole concept of originalism as interpreted by conservatives.


  2. Thief steals a painting. Painting is not located but the thief is prosecuted. Thief is ordered to pay $ in restitution but complains that they are being stolen from – after all, two wrongs don’t make a right!

    Perhaps instead the painting thief died before being found out. They left millions of dollars to their kids, but still no painting. Now what? Is inheritance the best money laundering scheme? Do the impact of crimes evaporate after the criminal dies?
    Do the kids of the owner of the painting have standing to take up the issue with the kids of the thief?

    “First, … two wrongs don’t make a right.”
    It’s not wrong to pay back for something stolen. Inheriting something stolen doesn’t make it not-stolen.

    “Second, … when can it end? ….”
    When you can’t reliably predict social outcomes by race.

    “And third, who gets to decide?”
    We do, democratically.


    1. Rollie, I didn’t steal anything. The idea that groups of people should be responsible for past actions of others is just not something I accept. Our main disagreement is philosophical. I see people as individuals while you see them as members of in or out groups.


      1. The children of the thief didn’t steal anything either, yet they got a generous inheritance while the children of the rightful owner got nothing. Now extrapolate that out.

        I didn’t invent the in or out groups, the thieves did. I’m just living in the world they made and seeing it for what it is.

        Round after round of Monopoly were played and the houses and hotels have been long set by the cheating of thieves. And now you ask us to just leave the board as it is and finally start playing fairly by the rules. That does not make any sense at all.


    2. But you could make this very same argument a million different ways. My ancestors immigrated from Poland and were subject to prejudices against those from Eastern Europe. I don’t have the advantages of Mayflower families or those who went to Harvard on a legacy admission. What about Japanese Americans who were interred during WWII. Didn’t those families get put behind on the Monopoly board? What about Hispanics and the disadvantages they’ve had to overcome? I could go on at length, but you get my point. We all get dealt a hand in life and it’s not equal. Some folks will always begin on second or third base while others will start with an 0-2 count.


      1. Italian / Norwegian ancestors here. Only a few generations old in this country. Where do I pick up my check?


      2. I take issue when people make this into a moral argument, saying essentially that it is wrong to compensate for theft. Right is right and wrong is wrong, and no matter who where or when, wrongs should be made right (according to my personal moral opinion). That doesn’t mean they can or will, but to me they should.

        If not a moral issue, it is a political and logistical issue, certainly. There are ways to approach the entire set of circumstances you raise – if we wanted to.

        I’m not educated on the concept, but I’ve been introduced to the concept of Jubilee and I understand it goes all the way back to biblical times and some of those present at the founding of the US advocated for it here. It seems like it would be a sort of periodic fresh restarting of the Monopoly board, to use that metaphor.


      3. PS
        I encourage everyone to reflect on how insulting it is to equivocate (or even compare, in my opinion) the enslavement of African people in the US and their subsequent pervasive generational discrimination to the treatment of Polish or Italian immigrants.

        If White Supremacists get their way indeed our history books will do exactly this. Down the memory hole it goes…. Truth, reality, rationality, history? It’s what the party says it is.


      4. I don’t agree it’s insulting at all. It is certainly a question of degree and I wouldn’t claim that being enslaved is the same as dealing with simple prejudice. But, on the other hand. if your point is that not everybody plays with the same resources in the Monopoly game of life, then yes, it’s relevant to that argument.


  3. I am a white male, BUT, I would get passed over in favor of a black female, or anyone else of a different race, or sex. That is how liberals think it, see it and do it.


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