<i>Grutter</i>--a monstrous decision that must not stand

Grutter—a monstrous decision that must not stand

A year ago today the U.S. Supreme Court issued its infamous decision (infamous, that is, to the handful of Americans who still actually care about our Constitutional and moral order) in the Grutter v. Bollinger case, which put racial group rights in the U.S. Constitution. Here is a long, and so-far unpublished, article I wrote about it last year.

Grutter—A Monstrous Decision that Must Not Stand

Lawrence Auster

Announced June 23, 2003, the Supreme Court’s ruling in Grutter v. Bollinger takes the constitutional quicksand of the Bakke decision and turns it into a swamp the size of the United States. It institutionalizes at the broadest national level a type of intellectual bad faith never before seen or imagined in this country—the sort of cynical, all-pervading dishonesty that characterizes, not a free country under the rule of law, but an ideological regime. Such deception is inherent in a revolutionary act of judicial legislation such as Grutter, in which the Court, despite the Constitution’s clear prohibition on racial discrimination by the state, has injected into the Constitution a justification for race preferences that could affect not only public universities such as the University of Michigan, but every sector of government and society.

In the present article I want to draw attention to two specific lies, or rather two complexes of lies, that inform Grutter and the statements of its liberal supporters. The first lie consists of the underlying “educational diversity” argument, which is the Court’s entire constitutional justification for the use of racial preferences in higher education. The second—and more serious—lie consists in the fact that this supposed constitutional justification is a transparently false pretext that the Court and the liberal elites are using to introduce a system of racial socialism into America. The constantly shifting arguments used by the Court and the diversity advocates make it hard for people to understand the real significance of what the Court has done, and thus may partly account for the passive and quiescent response of many conservatives to this catastrophic ruling.

The diversity rationale

The “educational diversity” argument—going back to Justice Lewis Powell’s famous dictum in the 1978 Bakke case and now adopted by a majority of the Court—claims that the presence of a certain indeterminate number of non-whites in an undergraduate or post-graduate program helps provide an intellectual and social diversity that students, or, rather, white students (since whites are not considered part of the diversity but rather the experiencing subjects of it), need to experience if they are to be prepared for positions of leadership in our racially diverse society. The nation’s future, wrote Powell, “depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples,” a phrase that anticipates by more than a decade the multiculturalist slogan, “One Nation, Many Peoples.” Grutter further expands the claimed educational benefits of diversity to include the encouragement of “cross-racial understanding,” the breaking down of “racial stereotypes” (another clue that prejudiced whites are the intended beneficiaries of the diversity experience), and the development of the “skills needed in today’s increasingly global marketplace”—skills that require exposure to “widely diverse people, cultures, ideas, and viewpoints” (again we see the suggestion that it is non-diverse whites who need exposure to “widely diverse” nonwhites). As Powell put it, intellectual diversity is the permissible educational object, and racial diversity one factor among several that help schools attain that object. Yet, as we look over the Court’s various formulations of the educational benefits, we notice that the object to be gained—competence for a multiracial world—seems to be virtually inseparable from the racial diversity which is the means used to attain it. Thus the majority at one point speaks of the “compelling interest in securing the educational benefits of a diverse student body,” yet elsewhere says that “the Law School has a compelling interest in attaining a diverse student body.” [Emphasis added.] Despite these glimpses—whether they be deliberate or inadvertent—into the real goal that hides behind the Court’s formal reasoning, the Court for the most part strives to stay within Powell’s guidelines, maintaining that that racial diversity is not the end, but only a means to reach the end.

And what an end it is. According to Powell in Bakke and Justice Sandra Day O’Connor writing for the majority in Grutter, student intellectual diversity with its various benefits is of such fundamental importance that the effort to achieve it (by means of racial diversity as one factor among others) constitutes a compelling governmental interest overriding the constitutional prohibition on official racial discrimination, namely the equal-protection clause of the Fourteenth Amendment which declares that “No State [or state supported institution] shall … deny to any person within its jurisdiction the equal protection of the laws.” We need to understand that Justice Powell specifically rejected all other proffered justifications for discrimination against whites in school admissions, including such “social-justice” goals as overcoming the effects of past discrimination or achieving racial diversity in the student body. Today’s Court, basing itself on Powell’s opinion, approvingly sums up Powell’s rejections of the various proposed excuses for racial discrimination:

First, Justice Powell rejected an interest in “‘reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession’” as an unlawful interest in racial balancing. Second, Justice Powell rejected an interest in remedying societal discrimination because such measures would risk placing unnecessary burdens on innocent third parties “who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.” Third, Justice Powell rejected an interest in “increasing the number of physicians who will practice in communities currently underserved,” concluding that even if such an interest could be compelling in some circumstances the program under review was not “geared to promote that goal.”

But here comes the bizarre twist in Powell’s opinion. Having held that racial discrimination against whites was not justified on any of the enumerated grounds, including the remedying of societal discrimination, Powell nevertheless insisted that it was justified by the educational benefits that accrue from intellectual diversity. This extremely peculiar dictum was issued as a concurrence to the majority decision and therefore lacked any formal legal authority. Yet it handed the affirmative action advocates an escape route from their apparent defeat in Bakke. The majority decision as well as Powell’s concurrence had firmly precluded the approach favored by the AA advocates (and by the Court’s minority), which was to permit race preferences on “social-justice” grounds pure and simple. However, Powell’s ambiguous opinion provided the diversiphiles with a less direct means to carry forward their egalitarian agenda: instituting de facto racial quotas under the legal façade that race was only being employed as one factor among others to achieve the desired educational benefits. This finesse would allow the universities to seek racial proportionality for its own sake, so long as they denied that they were doing so. And that is exactly what the universities proceeded to do for the next 25 years. The University of Michigan stands solidly within that dishonest—but by now thoroughly established and respectable—tradition. As Justice O’Connor writes for the Court in Grutter:

Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow from a diverse student body.”

Let us be clear that the “diversity” O’Connor speaks of in this passage is not, at least initially, racial diversity per se, but, in line with Powell, the whole range of possible human diversity—regional, religious, and intellectual as well as ethnic and racial. It is the presence of all these types of diversity in a student body that serves as a catalyst to help attain such goals as a “robust exchange of ideas” (Powell) or the breaking down of “racial stereotypes” (O’Connor). But while each of these kinds of diversity is thought to provide at least some of the enumerated educational benefits (such as a robust exchange of ideas), only one type of diversity requires the systematic selection of less qualified students of one race over more highly qualified students of another race. Such racial discrimination by a state school is permissible, the Court says, if it helps eliminate racial stereotypes or leads to some putative increase in the intensity of intellectual interchange among students.

As absurd and outrageous as it sounds, that is the entire substantive argument on which Grutter rests. The sheer weirdness of the idea—or, to be more precise, its stark cynicism and opportunism—is underscored by Justice Thomas in his dissent. Prior to Bakke, he remarks, a state interest compelling enough to allow the government to engage in official racial discrimination had been found in only two, narrowly defined areas of special urgency: government measures aimed at providing for national security and preventing violence, and government efforts to rectify the effects of past discrimination that had been committed by the government itself. Yet now the Court is allowing racial discrimination to achieve something as vague and tendentious as an alteration in students’ racial attitudes.

A further oddity of Grutter is that a school’s right to discriminate among applicants by race is based on a university’s academic freedom under the First Amendment to choose its own subject matter, faculty, and students. “The law school’s educational judgment that such diversity is essential to its educational mission is one to which we defer,” writes O’Connor. “Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions … ” This non-expert reader finds himself baffled by the notion that student diversity is both a discretionary choice on the part of a state university, and a governmental interest so compelling that it mandates official racial discrimination. Justice Thomas meanwhile is both bemused and indignant at the blatantly ideological manner in which the Court has applied this standard. He notes that the Court ordered the Virginia Military Institute to stop excluding female applicants, even though sex discrimination is not subject to the same level of scrutiny as race discrimination, and even though VMI had demonstrated to the Court’s satisfaction that the presence of female students would force the school to alter or abandon its long established “adversative” method of education; yet the Court now allows Michigan to engage in racial discrimination against some whites, and all for the weird and marginal purpose of enriching the learning experience of other whites, by including a “critical mass” of less qualified non-whites among them.

This patently unjust and irrational practice, and the establishment’s need to defend it at all costs, has a deeply corrupting effect on our whole society, made all the more degrading because almost everyone today seems to take the corruption for granted. Consider the approach employed by ABC’s Good Morning America. Appearing on the show the day after the Grutter decision was announced last June, the defeated plaintiff, Barbara Grutter, reiterated her position that the University of Michigan Law School had discriminated against her. By way of rebuttal, the program played a video tape of white and minority students at the law school talking about how much they appreciated diversity and what a marvelous part it had played in their education. It didn’t seem to occur to anyone that this was a patently offensive way of framing the issue. First, there was the stark amorality of suggesting that Barbara Grutter should not complain about being racially discriminated against—after all, look at all these students who say that they benefited from the university’s choice of a less qualified minority over her! Second, there was the blatant bias of including in the interview only those students who had been successfully admitted to Michigan; how about putting together a group of applicants who had been rejected by the school despite having better scores than the minority students who were admitted in their stead, and asking them how they like diversity? Third, there was the totalitarian implication of asking law students in contemporary America—and on camera no less—how they “feel” about racial diversity. Does anyone imagine that the students are going to say that they don’t like it? That would be like putting white students at an elite law school before a camera and asking them if they think that their black fellow students are as academically capable as themselves. Thus the pro-diversity argument offered by the students was inherently selfish and immoral; the sampling of interviews was biased in that it only included the winners of the diversity maze; and, as in some show trial in the Soviet Union, the answers were elicited by asking ambitious young people a question to which there was only one non-career-killing response. Yet this is what our mainstream culture, following the Supreme Court’s moral and constitutional logic, considers a proper way to to reply to a victim of official racial discrimination—if she’s white.

A more objective index of student attitudes can be found in an important study by Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte, published in The Public Interest and Academic Questions, and also referenced in Justice’s Thomas’s dissent. Without questioning the students about diversity per se, Rothman and his colleagues simply asked them how they rated the education at their respective colleges. The researchers found that the greater the racial diversity at a school, the less satisfied students were with their educational experience there. This should come as no surprise, since the greater the number of underqualified students, mainly blacks, who have been admitted to a school because of their race, the more pronounced the complaints from blacks and liberal whites about the supposed white racism that is allegedly preventing the blacks from achieving at the same level as other students. (A situation at Yale Law School that fit this description was recounted in June 2003 Commentary by columnist Jonathan Kay, a Yale Law graduate.) A further refutation of the idea that “mutually diverse students enrich each other’s educational experience” is the well-known phenomenon of voluntary ethnic group separatism on today’s campuses (as described at National Review Online by James Justin Wilson, himself a recent graduate of the University of Michigan.) So, not only is the “educational benefits” justification for anti-white discrimination without basis in the Constitution, not only is it unjust and immoral, but the benefits themselves are nonexistent—unless the “benefits” of diversity simply consist of the diversity itself. All of these objections were ignored by Justice O’Connor, who uncritically subscribed to the assurances by Michigan and other schools that student diversity provides indispensable “educational benefits.”

The Larger Deception

Underlying the various frauds and outrages associated with the “intellectual diversity” rationale, there is the “meta” lie of the Bakke and Grutter regime, the 800-Pound Lie, the Mother of All Lies. I am referring to the fact, touched on previously, that the very goal the Court says justifies racial discrimination against whites—i.e., a student diversity that in turn produces certain educational benefits aimed mainly at whites—has absolutely nothing to do with the real goal of the pro-diversity elites. Their real goal is, unsurprisingly, exactly what it has been all along: the collective social and economic equalization of blacks, Hispanics, and other “underrepresented” minorities, by any means that will work. Using racial discrimination as the means to achieve that goal is, of course, explicitly disallowed by the controlling Court decisions, as it is by the most basic American beliefs in fairness and individual rights. The diversity supporters must therefore lie about what they are up to, as unprincipled people tend to do when they very much want something that they can’t get if they speak the truth.

But here we enter Deep Orwell Country. Even as the liberals conceal their real purpose in the manner of ordinary deceivers, they do not conceal it at all. Thus in their joyous responses to the Grutter decision, the civil rights advocates unabashedly cheered what they saw as a historic victory of racial diversity and equal opportunity (by which they meant racial quotas), even while they continued to give fulsome lip service to the Court’s official justification, educational benefits. A variety of motivations could be adduced for liberals’ resort to these mixed messages. If they let on that the only purportedly Constitututional basis for discrimination against whites was not racial justice or remedying discrimination, but “educational benefits” (the supposed main beneficiaries of which are white!) the diversity regime would quickly lose any color of moral legitimacy in the eyes of the public. Also, the liberals seem impelled to speak in terms of racial justice and overcoming discrimination because it’s what they themselves really believe, it’s what has driven them from the start, it’s what they want other people to believe and to accept as the organizing principle of our society. Yet they can’t say any of this too clearly, because then the official reason for the decision, educational benefits, would be exposed as the fraud that it is and the whole house of cards would come tumbling down. So the affirmative action supporters keep moving back and forth, combining the official, educational-benefits argument with rhetorical appeals to ideals of racial equality that have no connection with, and are prohibited by, the Court’s core legal reasoning. These contradictory assertions are melded so smoothly into the diversiphiles’ rhetoric that most members of the public are unlikely to have any idea of the trick that is being played on them.

Thus, at an informal press conference outside the Supreme Court building on the day the decision was issued, Theodore Shaw of the NAACP Legal Defense Fund spoke buoyantly about the Court’s approval of “racial justice” and “racial diversity” in our universities. Wade Henderson of the Leadership Conference on Civil Rights said this “great day for equal opportunity” had established the principle that “affirmative action is a critical tool that can help universities achieve a student body that is diverse. The court has made clear that affirmative action is a legitimate tool to achieve equal opportunity.” By “equal opportunity,” Henderson clearly did not mean an absence of anti-black discrimination, since no one had contended that Michigan had engaged in or would engage in anything of the kind); he meant group equality of results. Meanwhile, Senator Charles Schumer reacted to criticism of the decision by asking: “How can overcoming racial discrimination be seen as discrimination against white people?” He thus let on that the goal was to end alleged racial discrimination against minorities, even though the decision itself had said that ending anti-minority discrimination was not a justification for minority racial preferences.

The misrepresentations reached a peak in a celebratory op-ed in the Washington Post by the former president of the University of Michigan and the defendant in the Grutter suit, the prince of diversiphiles himself, Lee Bollinger. Apart from his obvious pleasure at being vindicated by the Supreme Court, Bollinger had more particular reasons for singing the praises of diversity, having obtained his exalted perch as the president of Columbia University chiefly because of his assiduous devotion to race preferences at Michigan (such promotions are a common type of “educational diversity benefit” that the Court in Grutter somehow neglected to mention). In the key passage of the article, Bollinger juxtaposes the social-justice argument and the educational-benefit argument and makes them merge into one:

[T]he court has helped ensure that public and private colleges and universities in the United States will remain accessible to all Americans of all backgrounds. And it has helped ensure that American higher education will continue to educate our youth for the increasingly diverse world they will inherit.

The first sentence tells us that the universities will remain “accessible” to all Americans as a result of Grutter. But what could this mean? No one had charged that the University of Michigan or other elite universities, even in the absence of affirmative action, will be inaccessible to minorities in the sense of deliberately keeping them out or applying harsher admissions criteria to them than to whites. Since the continued “accessibility” of which Bollinger speaks does not mean non-discrimination against racial minorities (which is already assured), it must mean guaranteed proportional representation of racial minorities. Conversely, a lack of equal racial representation at a school such as Michigan (which might have been the consequence had racial preferences been outlawed there) would, according to Bollinger, make the school “inaccessible” to minorities. To say that a school is “inaccessible” to minorities suggests to the mind of the average person that the school is discriminating against minorities. Thus, without his actually saying so, Bollinger plants in his readers’ minds the idea that proportional representation is the only way to eliminate discrimination—even though the Court’s own jurisprudence has declared that race preferences cannot be used for that purpose, and even though no one has actually alleged such discrimination in any case.

But in the second sentence of this two-sentence pairing, Bollinger makes an entirely different point. “American higher education,” he writes, “will continue to educate our youth for the increasingly diverse world they will inherit.” In other words, the Court is ensuring for students a “diverse” educational experience with its various mystical benefits! Thus, having milked the real though officially impermissible argument for race preferences in the first sentence, Bollinger has quickly switched back to the officially permitted though unreal argument in the second sentence—a triumph of doubletalk for which Bollinger was at absolutely no risk of being called to account by anyone in the respectable precincts of liberal society.

Sadly, it is not only civil rights attorneys and politically fashionable university presidents who have legitimized Grutter in the popular mind by attributing to it an egalitarian purpose eschewed by the Supreme Court’s own legal reasoning. The Court itself has done that. As we’ve already remarked, Justice O’Connor writing for the majority declares that the only compelling state interest allowing a university to discriminate against whites is the enumerated educational benefits. But O’Connor doesn’t stop there. Ignoring the rule she has just laid down, she blandly proceeds to enunciate a whole series of quite different—but also supposedly compelling—reasons for discriminating against whites:

The armed forces must have a racially representative officer corps in order for minority enlisted personnel to see the officers as “legitimate.” Since officers are recruited from elite service academies and the ROTC program in the universities, those institutions must include a proportionate number of minority students.
The nation’s legislatures and courts, which derive their members largely from the top law schools, must have a “path to leadership” that is “visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the education institutions that provide this training.” In other words, in the absence of proportional racial representation in our governing institutions, minorities won’t have confidence in the system and we’ll have a lot of race riots on our hands.
Finally, O’Connor declares, in the culminating passage of the majority opinion, “[T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity… . Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

We already know what such blandly benevolent phrases as “visibly open,” “accessible,” and “effective participation” mean: they mean the systematic imposition of proportional racial equality in elite universities and throughout society—the very thing that Grutter’s constitutional precedent forbids and that Grutter itself excludes. Likewise the perceived need for a “legitimate” officer corps in the armed forces and for race proportionality among the country’s top legislators and judges. These may be desirable, even vitally needed, social objectives. But by the Court’s own reasoning that does not make them grounds to discriminate against Barbara Grutter or any other white person. Yet, in an access of doublethink, that is what the Court is saying can and should be done.

Let us retrace the strange path by which we arrived at this point. The liberal and corporate elites who wanted our top schools and other institutions to be racial mirrors of society had to find an argument, any argument, to give that demand some constitutional coloring. Powell in Bakke provided the coloring, as ludicrous as it was. But now this risible rationale, having been exploited for all it was worth by diversity-hungry universities for the last 25 years despite its constitutionally ambiguous status, has been transformed by Grutter into the supreme law of the land. Under this Orwellian regime, the chimera of “educational benefits” resulting from racial and ethnic diversity is treated as the explicit and legal end, when in fact such benefits are only a pretext to get at the real end, which is guaranteed racial equality of results; and that real end, supported by Grutter and the massively dishonest rhetoric of the entire American establishment, will now be pursued and enforced throughout our whole society.

I say our whole society because, under Grutter, it’s no longer just a matter of education. As the NAACP’s Theodore Shaw told the Chronicle of Higher Education:

I always understood education is different. At the same time, what may have broad impact here is the Court’s recognition that not all race consciousness is unconstitutional, that, in fact, there are compelling state interests in diversity. How far that extends, I’m happy to leave to another day. [Emphasis added.]

The Court, Shaw is letting on, has gone beyond what even he had thought possible. He had only been hoping to get race preferences approved in higher education. But now, with the Court’s finding of “compelling state interests in diversity,” defined by O’Connor as “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation”—Shaw sees far wider vistas of racial proportionality schemes opening before him, not just in the schools, but in the national government and the state governments, in businesses and the military, in judgeships and legislatures, and at every discrete level within each institution as well as within each institution as a whole. What he glimpses, in short, is a system of racial socialism, consisting of the raising up of less capable black and Hispanics, and the dragging down of more capable whites and Asians, in order to achieve strict equality of results between the races. He’s in no rush to take advantage, however. As he contentedly digests the marvelous meal the Supreme Court has served up in Grutter, he’s happy to wait for another day to explore these exciting new possibilities.

By enshrining the principle of mandated racial equality of outcomes in the U.S. Constitution, Grutter v. Bollinger announces an ominous epoch in our national life. It is to the lovers of American freedom in our time what the Dred Scott decision was to the opponents of slavery in its time, a grievous wound in our body politic, an institutionalized evil that throws the moral and Constitutional legitimacy of our nation, even our very identity as a people, into doubt. How, henceforth, do we even speak about America, when the very terms we have used to describe her, our reference points for political and intellectual discourse, have been redefined or abolished? How do we go on defending and invoking—let alone recommending to other countries—a political order which in key respects has been changed into the opposite of what it once was and supposedly still is? How do we keep celebrating the “universal principles” that define America, the belief in equality under the law and in the equality of rights of all people under God, when race quotas—the very antithesis of those principles—are now a part of our nation’s supreme law? Indeed, how can we claim that we’re a country under the rule of law at all, when unelected judges unabashedly re-write the Constitution, adding wholly new content to it based on nothing but their desire that it be so, or on the “will of the people” as expressed in the amicus curiae briefs of politically attuned military officers and corporation presidents?

The crisis has been greatly exacerbated by the fact that, in Kafkaesque fashion, so few people even acknowledge that it has occurred. Conservatives, the one group in America that has maintained a principled opposition to race preferences over the last 25 years, have evinced little or no awareness, let alone outrage over the decision. For example, in the months after the decision, a leading conservative figure, Paul Weyrich, did not write a single column about it, instead focussing on the political issues of the moment. And he was far from atypical. When I asked a respected national conservative activist the reasons for the astonishing silence of Weyrich and so many others, she replied matter-of-factly that affirmative action is not among the top ten priorities of the conservative movement. (Another person well-placed in the conservative establishment told me that concern over the war on terror has displaced all other issues.) Of the handful of conservatives who have criticized Grutter, most have done so in the same tone with which they would have criticized any other liberal Court decision over the years, rehashing the oft-told saga of judicial activism of which Grutter is but the latest chapter, but failing to treat Grutter as the earthquake that it is. Commentary actually tilted toward a neutral position on Grutter, publishing a symposium entitled “Has the Supreme Court gone too far?”—as if there could be any question of that! Even worse, half the participants in the Commentary symposium were liberals who thought Grutter was just fine, or nothing to worry about. This astonishing treatment of the issue by the leading neoconservative magazine—a journal that has always made opposition to affirmative action the keystone of its domestic political philosophy—betokened a historical retreat from the very principles that have defined modern conservatism. Even long-time activists against race preferences seemed to have given up the fight. Michael Greve, founder of the Center for Individual Rights which represented Barbara Grutter, said there was no money or energy to support an effort to overturn the decision. “You can continue to litigate those kinds of things,” he said, “but the broader question is settled and everything else is sort of skirmishes.”

Such are the weak, indifferent, or resigned responses of much of the conservative establishment to the Grutter revolution. If establishment conservatives have abandoned the faith, the rest of us cannot. The survival of our nationhood, of our ability to speak as Americans, of our soul and conscience as Americans, depends on the forceful and public rejection of this decision by a significant number of people. In the absence of such protest, Grutter will be taken to represent America, and then the victory of race preferences will be final. There are some among us who already assume that to be the case. Writing in the December 14, 2003 New York Times about the efforts to democratize Iraq, John Burns expressed the hope that Iraqis would be drawn

on a path of entrenched individual and group rights, of a firewall separation between church and state, of independence for the executive, legislative and judicial branches, and above all, of tolerance for minorities. In other words, the core of a civil society as understood in the West. [Emphasis added.]

Thus “entrenched … group rights” are now a part of “the core of a civil society as understood in the West.” In the aftermath of Grutter, the group-rights revolution doesn’t have to be even argued for any more, at least as far as the liberals are concerned.. It is simply taken for granted as an organizing principle of our society. Unless we fight it, it will truly become an organizing principle of our society.

If Dred Scott “shall stand for law,” wrote the journalist William Cullen Bryant in 1857, then slavery is no longer the “peculiar institution” of fifteen states but “a Federal institution, the common patrimony and shame of all the States…. Hereafter, wherever our … flag floats, it is the flag of slavery… . Are we to accept, without question … that hereafter it shall be slaveholders’ instead of the freemen’s Constitution? Never! Never!” As Bryant said of Dred Scott, so must we say of this hideous Grutter ruling and its corrosive lies: that we will never accept it, never give into it—even if generations must pass before it is finally overturned.

Posted by Lawrence Auster at June 23, 2004 10:14 AM | Send

Comments

A fine article on the subject, which, like so many others implicating the role of the courts in obliterating what remains of our traditional culture, has largely been banished to the outer darkness by the conservative mainstream. That mainstream does not want to touch the cultural issues, from abortion and sodomy to racial spoils, after all of the rhetorical fireworks have been let off, because it is so much easier to make one’s peace with liberalism than to oppose it in the knowledge that only generations of struggle will suffice to neutralize the poisons it has discharged into the body politic.
The reason, IMHO, that this article is the finest written on the subject, is bound up with the Deep Orwell Country passages. Liberalism has always, always, embodied that dualism of exoteric and esoteric reasoning or rhetoric. Grutter is a case which exposes the entire enterprise. As in Grutter, with its exoteric (discrimination undergirds unspecified educational benefits) and esoteric (discrimination achieves proportional racial representation, defined as diversity, and we - liberals - are the power bloc specifying the terms of that diversity) rationales, so also with liberalism more generally: exoteric (promotion of radical individual autonomy); esoteric (the individual determines his own truth, hence there are no objective, authoritative standards, only the will to power - which we will exercise when the moment is propitious).
If Grutter can be said to possess any virtue, it is that - that is has exposed the rank cynicism and Machiavellianism of liberalism, while we are left to mourn for what we have lost. Or, in my case, as I am only 30, never really had the opportunity to know.

Posted by: Jeff M on June 23, 2004 6:19 PM

JefF M speaks the truth. We have in many respects lost almost every cultural battle in the last 40 years, and we now stand to lose the very nation itself, or what is left of that nation. To read Grutter is to catch a glimpse of madness, a view of the American elite in decline. Most of our leaders are fools, cowards, or worse. If Jeff M lives a normal life span he will become a minority in his own nation, and will most likely see, at the very least, a race war, or the start of a police state to keep the races from each others throats.

Posted by: j.hagan on June 23, 2004 8:17 PM

I agree with Jeff M. This is by far the finest article I’ve seen on this abominable decision. The fact that this outsanding analysis remains unpublished after a year is testimony to the tremendous decay of conservatism. The one encouraging thing is that there are younger people out there, like Jeff M, who see the truth and work to carry on the opposition to this evil regime.

Mr. Hagan, the race war is already on, actually. It’s essentially a one-sided ‘dirty war’ of rape and murder that’s being waged upon whites - largely by blacks, increasingly by hispanics, with the tacit encouragement of leftists in the legal establishment and elsewhere. The rapes and murders go unreported in the leftist owned-and-operated press, and in the case of non-lethal rapes, unreported by the police so as to improve crime statistics. Add to this the layers of affirmative action and hate crimes legislation and it becomes readily apparent that whites have been designated as the oppressor/üntermensch whose elimination is essential for utopia. Most American whites are living in a stupor and refuse to see the truth until they or a family member ends up as a victim, if even then.

Posted by: Carl on June 23, 2004 11:15 PM

Carl is right, of course. There is a 40 year war on whites that involves violence and rape as its main wepons. There was a report on prison rape of whites by blacks and hispanics that was chilling last year. One of the unoffical prison rules was that whites could never rape across racial lines, but it was common for blacks and hispanics to rape whites. Indeed it is now becoming common knowledge that big city police departments have been lying about crime figures to make it seem as if things are getting better. The majority white population of this country is in a collapse so historic that it is breathtaking to behold.

Posted by: j.hagan on June 23, 2004 11:46 PM

Mr. Hagan touches on the phenomenon of prison rape. From what I have read and heard prison rape seems to be relatively common and there seems to be little public outrage about this or official action to punish the rapists or to prevent the occurance of rape. I wonder if prison rape were as common in the America of fifty years ago, in which homosexuality was not accepted, approved, and celebrated, as it is today. I think that prison rape and murder ought to be punished by the death penatly because prison rapist’s and murderer’s punishment cannot be much increased by giving them another prison sentence; and, consequently, prison sentences are insufficient to deter other prisoners from committing such crimes.

Posted by: Joshua on June 24, 2004 12:39 AM

It is true that the government, for forty years now, has been trying to initiate a race war; and the reaffirmation of quotas is central to this. The point to recall is that the unprincipled power-seekers don’t like the minorities, they hate limitations on official discretion. The military officers’ briefs indicate how they will do this; they need minority officers and troops, in order to wage war on the majority. Only widespread racial and ethnic fighting can gain for the officials the power that they crave. Grutter is a judicial declaration of war on the majority, and the conservatives are afraid to even think about what it means. Welcome to the anti-caucasian states of north america. Officials are saying that, if their policies were not anti-caucasian, that would be a national emergency. This is the meaning of compelling state interest. They mean also that all their hopes are pinned on the anti-caucasian policies. Their hope is power, not the cause of the minorities being advanced.

Posted by: John S Bolton on June 24, 2004 1:39 AM

The control of white men in prison by blacks and hispanics as sex slaves is not only unreported in large part by the press, but bespeaks of a larger truth in the culture wars, and what that war means on the outside. I don’t remember who wrote this article last year, but if someone knows of it, and could post it here, I would be thankful. If memory serves me: one of the whites who killed James Byrd in the Texas dragging death used his prison rape by blacks as an excuse for his race hate.

Posted by: j.hagan on June 24, 2004 2:07 AM

That could be searched for; but I do recall that, in the case of the murder of Cosby’s son in Beverly Hills, the same excuse was used ( of a prison experience of that kind )by the murderer. What process generates the anti-caucasian society of today? I say it starts with a bright scholar who has theories which he believes, will improve the world, but the people don’t want to be pushed around like that, and never will. Not only the people, but the nature of law, as limited power, stands in his way. Worse, there are often laws of nature which would obstuct his theory. Now add the ambitious, who must get past these scholars en route to their careers. If these professionals prefer not to admit to themselves that they sold out important principles for personal advancement, the result is the elites hate the majority and the law, and the definition of the elites, in this sense, will be those who’ve been vetted by just such scholars.

Posted by: John S Bolton on June 24, 2004 2:30 AM

Mr. Auster hit another one out of the park—explaining the intricacies of Grutter to those of us who may not have thoroughly understood its implications.

I remember when this decision came down, I knew immediately that Justice O’Connor (who had been “turned” by Justice Ginsberg and others since Justice O’Connor had essentially put George W. Bush into The White House) was leading the way with the left. Here was a former “true blue” conservative (who had been villified by the left during her confirmation hearings) who has been somehow convinced in “the error of her conservative ways” and is apparently trying to make up for it in decisions like Grutter. Justice Souter was a supposed conservative who turned out to be anything BUT one. However, Justice O’Connor was well-known as a conservative before going to The Supreme Court.

I as a conservative have no more hope for The Supreme Court making conservative decisions. With the “turning” of Sandra Day O’Connor, the left has won the majority without even a new justice being appointed and approved. I wonder how Justices Scalia and Thomas are feeling about her and their loss of the majority. It must be a very unhappy place.

Posted by: David Levin on June 24, 2004 5:10 AM

The most annoying thing about Grutter was that it was a slap in the face against objective standards.
Basically, the decision said that you could use racial preferences as long as you didn’t do so in a way so it could be proven that you did so. As long as standards are fuzzy enough, it’s okay.
The justices objected to a point system because it was too objective - and too honest. Letting minorities inb who score 200-300 points lower on the SAT because of unexplained “mitigating factors” is okay, but actually honestly stating that you are setting a lower standard is not.

Posted by: Michael Jose on June 24, 2004 5:22 AM

It sets up duplicity and cynical dishonesty as state religion. It establishes an anti-merit society, where we’re expected to promote people on the basis of their disadvantage and lie about it. It encourages every racial hostility, as if the goal were to maximize conflict on a racial and ethnic basis.

Posted by: John S Bolton on June 24, 2004 5:38 AM

There are many factors that converge at Grutter, but one that is essential is the fact of racial differences in IQ. The equalitarian dogma that has hypnotized our society finds its inevitable outcome in Grutter.

We were destined for Grutter from May 17, 1954, when the Supreme Court amended the Constitution to give us the travesty of Brown v. Board of Education and Bolling v. Sharpe. There was no other way we could go and still maintain the delusion of racial equality. We could only replace “separate but equal” with forced mixing that would be (legally!) unequal.

The old segregationists were right. Hopeless ideals on one side, reality on the other. Reality is that no solution to this problem can be effected without recognizing an intrinsic difference in educability between the races, and the result of that recognition points in only one direction —> Segregation.

As difficult as it sounds, failure to recognize this is the failure to learn from the history of the past half century.

Posted by: Joel LeFevre on June 24, 2004 5:48 AM

Quite an interesting article on ethnic composition of black students at Harvard and other elite schools:

http://www.nytimes.com/2004/06/24/education/24AFFI.final.html

Bottom line: black students at Harvard, presumably admitted under affirm action reverse discrimination program, mostly are not Americans and/or not quite black.

2/3 of black students at Harvard are African immigrants or children of immigrants and/or of mixed race, mulatto in most cases.

It had to be expected that a policy built on fraud will produce unexpected fraudulent results.

Posted by: Mik on June 25, 2004 3:18 AM

The New York Times article that Mik linked to is a gold mine of revealing quotations from the Left. I will cite just one: “They said that only about a third of the students were from families in which all four grandparents were born in this country, descendants of slaves. Many argue that it was students like these, disadvantaged by the legacy of Jim Crow laws, segregation and decades of racism, poverty and inferior schools, who were intended as principal beneficiaries of affirmative action in university admissions.” I thought that affirmative action was not about making up for the sins of the past, but was in fact about the benefits of educational diversity. Right?

Posted by: Clark Coleman on June 25, 2004 8:00 AM

Mr. Coleman is pointing to the central idea of my article about the Grutter decision: that the _formal_ purpose of race preferences is “educational benefits,” while the _real_ purpose of race preferences is to raise the condition of blacks; and that liberal discourse about race preferences continually shifts back and forth between these different and mutually incompatible rationales.

Posted by: Lawrence Auster on June 25, 2004 8:24 AM

The article about Harvard’s blacks is revealing, and foreshadows a conflict that is coming between American-born protected minorities and the alien protected minorities that our insane immigration policies let in. White Americans get screwed either way, of course, to the delight of those who run the Harvards of the world.

There is a definite hierarchy of preferences in university admissions; generally the less white and the more exotic the better. Harvard leads the way; remember that in the Bakke decision Justices Powell and Brennan both praised the Harvard College affirmative action guidelines as how to discriminate against white Americans and get away with it. I doubt things have improved since 1975 (the year they cited).

From what I have seen, this is how it works:

Black trumps white.
Hispanic trumps white.
Oriental/East Indian/American Indian trump white.
Woman trumps man.
Jew trumps Christian, and Jews don’t get the short end of the affirmative action stick (I’m sure Moslem, Buddhist, et al., also trump Christian, but they already benefit from racial preference).
In ivy league schools, absent affirmative action preference, regionally diverse (i.e., not applying from the Northeast) trumps applying from the Northeast (especially from a prep school of the sort that used to feed IL schools; useful for excluding WASPs who in admissions officers’ view already are too privileged).
A corollary of the above - and here comes my conflict - foreign trumps American.
Very likely, if it isn’t happening already, homosexual will trump sexually normal.

In the affirmative action conflict between American minorities and foreign minorities, diversity-mania and the preference for the alien over the American mean that the natives (the people for whom the whole affirmative action scam - at least in its reparative context - was created) are going to lose out to the aliens. In practice, however, what is more likely to happen is that universities will simply place more slots out of bounds for white Americans so they can fit in both alien and native unqualified minorities.

As for Harvard, it is a cultural Marxist hell. To the extent Americans can ignore it, they should. No American with any sense should want his children to go to college there. Unfortunately, we cannot ignore Harvard entirely as it is so enormously influential (entirely for the bad, as far as I can tell). What is true of Harvard is true of other major American universities, but Harvard is first, and worst.

Mr. Auster’s Grutter article exposes the lies underlying the decision better than anything else I have read about the case. He also expresses honestly what a tremendous defeat Grutter is for honesty - and for white Americans. Friends of mine (including several parents of New England preppies who dearly want their darlings to go to Harvard, Yale or Princeton) have no idea of what has been done to them, even though they generally disapprove of affirmative action. Not for the first time, I ask: what will wake them up?

As for Justice O’Connor, I cannot agree with David Levin that she has ever been a conservative - certainly she never has been on the bench. She was a Reagan affirmative action two-fer: first woman on the Supreme Court, the real reason he gave her the job, and a way to give a goodie to a fellow Westerner who had been a loyal Republican apparatchik. Appointing her was almost as bad as accepting GHW Bush as his running mate in 1980. HRS

Posted by: Howard Sutherland on June 25, 2004 10:20 AM

Mr. Sutherland’s comment about Sandra Day O’Connor is dead on. She was never a real conservative, but an Arizona country club apparatchik. The fact that she has been such an intellectual dim bulb is further proof that she was the AA two-fer described.

Posted by: Carl on June 25, 2004 12:37 PM

Jews will get hit hard by affirmative action — whether as whites or as a group distinguished from white Christians. It hasn’t escaped notice that such a large proportion of white students at the top schools are Jews. The time will come when Jews will be treated as a separate group and will have quotas imposed upon them. No one will be able to defend (least of all Jews who believe that all groups are equal) why a group that is a mere 2% of the population is 25-35% of the elite colleges. If you remember Pat Buchanan pointed this out in an article in the Wall Street Journal a few years ago. You don’t think that the newest groups in this country who are highly anti-Semitic (ie Hispanics and Moslems) are conscious of this?

Posted by: susie on June 25, 2004 12:39 PM

Susie raises an interesting issue. What she says could become a problem for Jews in our universities, a group I contend is largely exempted from the bad consequences for whites of affirmative action. I don’t think that what she predicts will happen soon, however.

I hope the following doesn’t give the impression that I am a conspiracy theorist, because I don’t believe there is a conspiracy at work here (except to the extent that the whole diversity racket disguising racial discrimination as beneficial educational diversity is a conspiracy of like-minded liberals). This is just how things have turned out.

Elite American universities today are dominated, to an extraordinary extent, by Jews. I believe the presidents of all ivy league schools today are Jewish. Certainly all were a few years ago; perhaps there has been a change or two in the lineup. Maybe this was inevitable once these colleges removed all restrictions on Jewish applicants, who are usually intelligent, hard-working and high-achieving. The (largely secular Jewish) liberals who run American universities are absolutely committed to affirmative action at the expense of white Americans. I believe that university administrators make an unprincipled exception for Jews and treat them somewhat like an oppressed minority when they are, in fact, wealthier-than-average white people. To the extent they think about it at all, they probably rationalize it by appealing to the historic sufferings of the Jews, just as supporters of affirmative action for blacks cite slavery and Jim Crow. I am not saying standards are lowered for Jews; they don’t need that help. What I am saying is that in choosing between white American applicants of roughly equal qualifications, one gentile, the other Jewish, the typical college admissions committee will pick the Jewish applicant, as being the more “diverse” applicant and the one with a presumed stigma to overcome. I also suspect that not many Jewish applications wind up in the pile of white applications that are more than good enough to admit, but get rejected anyway to make room for less-qualified minority applicants. That ethnic favoritism plays a part is hard to prove, but it is hard for me to believe that it does not. Much of the rationale for affirmative action is white America’s need to atone for previous mistreatment of blacks. I have met very few Jews who believed that Jews were responsible for any of the supposed mistreating.

Jews are usually impeccably liberal and have worked very hard to advance the black and hispanic power agendas. It is to ethnic pressure groups’ advantage to have Jewish liberals in positions of power, and I suspect those groups’ leaders know it. As long as there are plenty of quota slots kept open for blacks and hispanics, the usual suspects are not going to complain that the remaining whites are too Jewish - the very whites who, on average, are most likely to support affirmative action! Basically, though, I don’t think blacks and hispanics much care what kind of white goes to elite universities as long as there is plenty of room for underqualified minorities. HRS

Posted by: Howard Sutherland on June 25, 2004 1:57 PM

Susie raises an interesting point. Jews are increasingly being viewed by some on the left as simply a subset of whites, though until very recently they were considered to be among the oppressed “other.” With the high degree of Jewish success in US society, and the high rate of support for Israel, one’s of the left’s favorite demons, this idea of Jews as an oppressed group is rapidly losing ground as leftists move to embrace Muslims and Hispanic invaders, who are not terribly sympathetic to Jews.

However, with the heavy Jewish presence in the left, this trend might not play out. One scenario, already mentioned by Mr. Sutherland, would be to reduce the number of white slots in admissions to Ivy League schools, with the relatively small number remaining going mainly to Jewish applicants, and increasing the number of slots reserved for all of the various “others” pouring in from across the globe. For people who deny the existence of race and ethnicity, leftists are quite obsessed with making sure that all groups except one are very well represented.

Posted by: Carl on June 25, 2004 2:07 PM

I hadn’t seen Mr. Sutherland’s latest, which gives a fine insight into the entire racial preference racket and how it works.

The leftists I refer to in my last post are the hard left who are typically not in administrative positions at universities, though they are often present among the faculty. As more hard leftists move into administrative positions, the unpricipled exception excercised regarding Jews by the current liberals will have to fall by the wayside as things move continually leftward - and more Muslims, etc. arrive on scene.

Posted by: Carl on June 25, 2004 2:22 PM

At some point, this will all be moot, because Harvard won’t be Harvard anymore. We can all agree that the quality of an institution is determined primarily by the caliber of the students who attend. As more and more students of these institutions become minorities of one variety or another, no one of caliber will want to attend that college. The Ivy League and other schools of that rank will deteriorate so badly that quality students — including Jews — will go elsewhere. It will basically be a game of musical chairs as the minorties will follow these students to those schools that have mysteriously become so good.

Posted by: susie on June 25, 2004 2:43 PM

What Susie says in her latest is what should happen. Universities that jettison their standards for the sake of social engineering should be discredited and abandoned. But that is not what is happening to our élite universities, even though they have jettisoned standards in admissions, faculty hiring and grading. Their names carry such prestige, and a degree from one (Harvard above all) is such a powerful credential, that large numbers of students keep on applying, allowing those colleges to appear, on admission percentage alone, very competitive.

I talked about this once with a friend who went to Harvard College. He said it was a mediocre undergraduate college, but having Harvard behind your name was like having a rocket booster strapped to your ass. It will have that kind of oomph for a long time to come, which is why it is such a deadly enemy for traditionalists. It is a thoroughly subversive institution that most people assume is steeped in traditional excellence. HRS

Posted by: Howard Sutherland on June 25, 2004 2:57 PM

Harvard College likes to inform the world that it has the smallest average difference in SAT scores between its black and white student body in the ivy league. I believe blacks trail whites by just under 90 points. Of course, as the NY Times article above states, things are not as plain as they seem. Most of the black student body is bi-racial, or from overseas. As for the bi-racial black students, from past personal observation, if some of them were even 25% black, that would be pushing it.

Posted by: j.hagan on June 25, 2004 7:42 PM

I don’t think that alien blacks are preferred over American blacks because of their foreignness. The clear implication of the New York Times article, although they could never state it openly, is that American blacks are so dysfunctional and underachieving that it is hard to fill quotas with them, while blacks from the Caribbean and Africa can be found who actually have two parents and studied hard in school before applying to Harvard.

Posted by: Clark Coleman on June 25, 2004 8:57 PM

If the salient contradiction of the new quota regime is that it is advertised officially as being pro-caucasian, while its purpose is obviously anti-caucasian, this is a confession by the courts. They are admitting tha there is something that needs to be concealed, at the center of their quota operation. They are also not mentioning that the first cohorts of the ~3rd~ generation of affirmative action cases, are applying today, and that they require the same number of points (over the non-preferred) to be given, as their grandparents did. Quotas were supposed to be a one-shot ice-breaker, but now were being advised that this growing monstrosity is to be permanent.

Posted by: John S Bolton on June 26, 2004 5:50 AM

Howard Sutherland’s comments on “who trumps who” are interesting but I would offer an amendment: at least in California, blacks and Hispanics trump Asians in affirmative action. From things I have heard, although only in the form of rumors, homosexuals already trump normals in some places as far as faculty recruitment goes.
I do not think foreign blacks trumping native blacks is a policy issue, but does happen, simply because they are, on average, better educated or simply more disciplined. That West Indians are somehow “better” than native blacks was a common sentiment even 40 years ago in NYC, both among whites who disliked blacks in general and, in a suitably euphemistic form, among those who didn’t.

Posted by: Alan Levine on June 26, 2004 3:01 PM

The sad fact that Skip Gates, and his gang at Harvard will never admit to, is that there are not enough native born blacks to fill the several hundred seats the university has opened up for them. So, they fill the quota seats with whomever looks somewhat black, then get together and cry in their beer over this sorry state of affairs.

Posted by: j.hagan on June 26, 2004 3:27 PM

It needs to be pointed out, so long as these mendacious and unjust policies are resorted to, that the community of scholars has a responsibility to care about the truth, and that the courts have a responsibility to care about justice. Their racial policies are anti-caucasian, and these schools and courts are giving us the big lie that they are pro-majority. An interpretation of justice which requires disadvantaged minorities, from the top percentiles of parental income and education, to be selected above lower and middle income applicants from the majority, who scored higher, is just an arbitrary evaluation. The courts say that we can’t go back to white supremacy, which would consist of just refraining from using anti-caucasian aggression to force places to take disadvantaged minorities for racial reasons. That is the quality of their reasoning; a false dilemma of either white supremacy, or let them use state aggression to get racial quotas.

Posted by: John S Bolton on June 27, 2004 3:28 AM

Steve Sailer has picked up on the NYT article about Harvard’s blacks. As always, he has something interesting to say about it: http://www.vdare.com/sailer/harvard_quotas.htm. HRS

Posted by: Howard Sutherland on June 28, 2004 12:29 PM

Here is another gross contradiction-in-terms that was reaffirmed and established in the Grutter decision: the pro-diversity officials insist on the importance of race and ethnicity; since racial and ethnic diversity value are asserted. Race can’t be irrelevant if diversity-value of race can arise at all. It implies the genetic inheritance of racial and ethnic mentalities; since there is not to be any need for a test of the presence of these mentalities. Yet the courts also say that they are breaking down stereotypes, and working against racial and ethnic prejudices, at the very same time that they assume inheritance of genetic mentalities alomg racial lines.

Posted by: John S Bolton on June 29, 2004 1:29 AM

The Supreme Court, with a bare five-to-four majority, declared that UM’s law school had a compelling governmental interest in creating a diverse student body and that
its admission program, which sought to achieve a diverse student body and admit a “critical
mass” of minority students, was constitutional. The end of culture. This is a fundamental opinion by a liberal controller of a Court that cannot be underestimated. The morons believe race must be taken into account even though race, in the majority liberal thought, should not be taken into account.

The Supreme Court’s key utterance, with a bare five-to-four majority, declared that UM’s law school had a compelling governmental interest in creating a diverse student body and that its admission program, which sought to achieve a diverse student body and admit a “critical
mass” of minority students, was constitutional. Very new, and based on a stupid DISSENT by former Justice Powell. This was a blatant act by liberal controllers of a Court that cannot be underestimated. The morons declared race must not be taken into account even though race, in the majority liberal thought, should be taken into account.

Posted by: P Murgos on June 29, 2004 2:36 AM

The officials say diversity is what we urgently need to value; and that a national emegency will follow, if institutions fail to act pro-diversity in a high degree. The diversity means diverse from the whites; and it is racial, and it is ethnic in the racial sense of the term. A powerful dictator said that the influence of the Jews must be cut down, and that it is an emergency, if this is not done. No one can prove that this is not, in principle, the same as what the federal courts are saying in regard to the Caucasians in America. Further, it carries a similar threat of extermination through public policy.

Posted by: John S Bolton on June 29, 2004 4:17 AM