Dispatch #108 White Lesbian Age 71 Considers Corruption of Affirmative Action

July 6th 2023  

866 Days Since Inauguration of First Woman Vice-President

229 Days Until the 2024 Presidential Primaries Begin 

377 Days Since Supreme Court Ruled Women Don’t Have Human Rights

Justice Ketanji Onyika Brown Jackson’s affirmative action dissent simmers with contemptuous outrage. For a concise and erudite summary of the last 100 years of federal policymaking that (1) awarded cumulative benefits to generations of white people, and (2) intentionally excluded generations of black people from all of these benefits, you will not find a more damning indictment of white supremist American governance.  Her dissent opens with these paragraphs:  

Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Yet, today, the Court determines that holistic admissions programs like the one that the University of North Carolina (UNC) has operated, consistent with Grutter v. Bollinger, 539 U. S. 306 (2003), are a problem with respect to achievement of that aspiration, rather than a viable solution (as has long been evident to historians, sociologists, and policymakers alike).

Justice Sotomayor has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start. Students for Fair Admissions (SFFA) has maintained, both subtly and overtly, that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants.

This contention blinks both history and reality in ways too numerous to count. But the response is simple: Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry.

It is that inequality that admissions programs such as UNC’s help to address, to the benefit of us all. Because the majority’s judgment stunts that progress without any basis in law, history, logic, or justice, I dissent.

Due to length, the complete dissent is attached as PDF; here is a URL “A Tragedy for Us All”: Justice Ketanji Brown Jackson's Dissent www.thenation.com/article/society/kbj-dissent-affirmative-action/ 

In this moment where women’s human rights have fallen to a decades-long strategy powered by reframed language and narratives, we must see how affirmative action was doomed by the same strategy. Three writers provide critical instruction in the New Yorker Magazine.

In March 1961 President Kennedy’s Executive Order # 1095 required that ‘federal contractors take affirmative action to ensure’ equal opportunity in employment regardless of race. In September 1965 President Johnson’s Executive Order #11246 reaffirmed the requirement ‘that federal contractors [to] take affirmative action to promote the full realization of equal opportunity’ and added sex [gender]. 

Affirmative action’s foundational purpose was [is] a reparative promise; that is, a recognition that actions were required to redress the systemic injustice and oppression experienced by Black Americans. Courts held that affirmative action met the constitutional requirement for compelling interest and did not violate the 14^th Amendment [Equal Protection] when used in employment and higher education. 

In his New Yorker essay titled “Why the Champions of Affirmative Action Had to Leave Asian Americans Behind” Jay Caspian Kang notes:

The end of affirmative action really started in 1978, with Justice Lewis F. Powell, Jr.’s opinion in Regents of the University of California v. Bakke—the first Supreme Court case on the matter—which tried to split the difference between a divided Court by arguing that the race of a candidate could be considered, but not as part of a reparative, quota-based program that tried to reduce the harms of slavery and injustice. Rather, race could only be considered by an admissions office that wanted, for the benefit of itself and its students, to produce a “diverse” student body…. Affirmative action, in my view, was doomed from that moment forward because it had been stripped of its moral force. www.newyorker.com/news/our-columnists/why-the-champions-of-affirmative-action-had-to-leave-asian-americans-behind 

Acknowledging the legitimate concerns of Asian Americans caught up in the demeaning metrics of diversity, Kang concludes:

These opinions betray the corruption of affirmative action’s original righteous, reparative promise, and the way in which a program that was designed for a racially binary America never got meaningfully updated for today’s multiracial democracy. After five years of covering this story, I have found very little to admire about how élite colleges played their decadent racial-preference game. 

In her New Yorker essay titled “The Supreme Court Overturns Fifty Years of Precedent on Affirmative Action” Jeannie Suk Gersen notes:

Perhaps the most unfortunate aspect of the affirmative-action precedents is that since 1978, in Regents of the University of California v. Bakke, the Court has said that the goal of remedying past societal discrimination and injustice is not a compelling interest for schools to pursue in admissions. The dissents in the S.F.F.A. cases underscored not only that the sins that the United States has visited on Black people did not end after slavery and Jim Crow but also that the original justification for affirmative action which the Court approved five decades ago—diversity—was entirely incommensurate to the profound problem to be addressed and was doomed to fail.  www.newyorker.com/news/daily-comment/the-supreme-court-overturns-fifty-years-of-precedent-on-affirmative-action 

In his Bakke opinion, Justice Powell gutted the principle of affirmative action in higher education by substituting “diversity” as the constitutionally acceptable measure.  In his New Yorker essay titled “The End of Affirmative Action” Jelani Cobb notes:

Crucially, in the wake of the 1978 Regents of the University of California v. Bakke case, one of the first significant challenges to affirmative action, these factors [remedying past societal discrimination and injustice] were discarded as a rationale for the policy in place of a more nebulous (and, presumably, more palatable) pursuit of social and institutional “diversity.” www.newyorker.com/magazine/2023/07/10/the-end-of-affirmative-action

Did Justice Powell intend to dismantle the reparative premise of affirmative action in 1978?  The Supreme Court’s pivotal role in supporting institutionalized white-supremacist-heteropatriarchy is well-documented and long-standing.

In August 1971, less than two months before being nominated to the Supreme Court, Powell wrote a confidential memorandum for the U.S. Chamber of Commerce. The memo was titled “Attack On American Free Enterprise System” and outlined ways in which business should defend and counter attack against a "broad attack" from "disquieting voices." The now infamous Powell Memorandum outlined a corporate blueprint to dominate US governance.

Powell advocated that corporations take a much more aggressive and direct role in politics. Corporate lobbying expenditures and donations to politicians have exploded in size and relative importance, pulling elected officials away from various public interests towards the enduring priorities of big business. Powell identified the judiciary as one of the most important arenas for business activism. Perhaps the most infamous example of how corporate power has been advanced through the strategies seeded by Powell is last year’s Supreme Court decision in Citizens United v. Federal Election Commission, which opened the floodgates to unlimited corporate contributions to influence elections. One of the most important themes of the Powell Memo was for corporate America to invest in a long-term effort to influence educational curricula and reduce their most outspoken critics’ influence on campus. Corporations have since used a variety of means to influence university research and campus culture.

Greenpeace Analyzes the Lewis Powell Memo: Corporate Blueprint to Dominate Democracy www.greenpeace.org/usa/greenpeace-analyzes-the-lewis-powell-memo-corporate-blueprint-to-dominate-democracy/ 

Yeah, Supreme Court Justice Powell met his responsibility to protect America’s version of white-supremacist-capitalist heteropatriarchy. That this Supreme Court, packed with 6 extremist right-wing justices, abrogated women’s human rights reflects the decades-long strategy powered by reframed language and narratives.

“For the master's tools will never dismantle the master's house. They may allow us temporarily to beat him at his own game, but they will never enable us to bring about genuine change.” 

Audre Lorde