In the decision of the 2003 affirmative action case Grutter v. Bollinger, Justice Sandra Day O’Connor wrote that “The [Supreme] Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The “interest” to which she referred was diversifying the student body of American universities in terms of race and ethnicity. 19 years have now passed since that case, but the absurd contradictions that attend the current practice of giving special considerations to race and ethnicity in hiring, promotion, and recruitment show that it is long past time to make race-neutral policy the law of the land. Recent dramas unfolding in the National Football League and the Supreme Court nomination process underscore this truth.
Consider first the slow-motion trainwreck of the Biden administration. Shortly after announcing his candidacy for president, Biden promised that his Vice President would be a woman. To be clear, “vice presidential candidate” is not a paid job. As such, Biden was under no compunction to ensure “equal opportunity” in his consideration of a running mate. But then Biden caved to demands that his choice be a black woman. We can certainly question the wisdom of such a commitment. Black women make up approximately 7% of the US population. If one rules out 93% of possible candidates for such a key position, can we still ensure that we are getting the best candidate? The fact that Kamala Harris was Biden’s choice – a generally-unliked figure with a checkered past and minimal experience in national governance – begs the question of whether a better choice might have been made had the campaign considered a wider pool of potential candidates.
One might have assumed that choosing a running mate based on arbitrary identity characteristics was a one-off: a calculated attempt to add the novelty of the first non-white VP to a very bland ticket led by a demented, white, octogenarian quarantining in a basement. But Justice Breyer’s recent announcement that he will step down from the Supreme Court was quickly followed by a public statement from Biden that he will ensure his nominee is another black woman. Appointing a Supreme Court Justice is indubitably different than selecting a running mate in a political race. And yet, in the interest of notching another “first,” Biden has again severely constrained the pool of contenders before the vetting process even begins: “The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first black woman ever nominated to the United States Supreme Court. It's long overdue[.]”
This statement invites some scrutiny. The justification given for considering only black women is that it’s “long overdue.” This suggests that Biden’s primary concern is not jurisprudential experience or excellence, but the demographic makeup of the court and whether it reflects some predetermined ideal. There has never been a black woman on the Supreme Court. A will to correct this historical fact overrides all the other important considerations (except, perhaps, that the new Justice be a devout leftist). Indeed, Biden’s comments make explicit the common justification for affirmative action in the United States. But the refrain that Americans should judge people by the content of their character rather than the color of their skin, is quickly going out of style. Most now believe that the racial make-up of any freely-selected group should match the proportions of each demographic in the general population. Presumably, this is why Biden is so concerned with black women: if they constitute 7% of the population, but make up 0% of Supreme Court Justices or Vice Presidents, then such underrepresentation is an injustice that must be rectified. Some might say that choosing to not rectify it is to affirm the legacy of racism that contributed to this underrepresentation. But there is irony in the fact that Biden is now choosing his nominee for Supreme Court by recourse to the same sorts of preferences that this very court has consistently ruled to abolish.
As I have explained elsewhere, while the advocates of affirmative action policies say that they simply want a proportional representation that “looks like America,” their behavior shows that they aren’t really interested in proportional representation. If black people make up 13% of the population, the left isn’t happy if black people make up 13% of Supreme Court Justices or college students. In truth, the advocates of affirmative action work to ensure equal representation rather than proportionate. In other words, although white people make up about 65% of the nation, affirmative action advocates would argue that any group made up of 65% white people is not diverse enough. They would seek a court that is 20% white, 20% black, 20% Hispanic, 20% Asian, 20% “other” – 33% men, 33% women, 33% “non-binary,” and etcetera.
How do we know this? Well, for starters, there is already one Supreme Court Justice (of nine) who is black. This means that as the Court is currently constituted, it is about 11% black – very close to the black share of the general US population. If Biden keeps his promise to add a black woman, that 11% will jump to 22% -- a significant overrepresentation of the percentage of black people in the general population. Personally, I do not believe that we should allot each demographic group only as many spaces as their share of the general population should warrant. Put differently, I see nothing wrong with 22% (or more) of Supreme Court Justices being black. But I don’t make the rules, and the people who do profess to care about these percentages endlessly contradict themselves about how important proportionality is.
Consider a second case. Until the end of the regular 2021 season of the National Football League, Brian Flores (a black man) was head coach of the Miami Dolphins. Last week, Flores filed a lawsuit that alleged racial discrimination during his tenure in the league (among other things). Among his evidence is that when there was an open position for coach of the New York Giants, Patriots coach Bill Belichick texted to congratulate Brian on winning the job – before Flores had even sat for an interview. After some confused and awkward back and forth, it became clear Belichick had texted his congratulations to the wrong Brian: Brian Daboll had already been internally named as the new coach. Still, Flores was scheduled to give an interview two days later. Flores asserts that this interview – which the lawsuit alleges was a “sham” – was conducted only to satisfy the so-called “Rooney Rule” which demands that NFL teams interview minority candidates for coaching jobs. The implication here is that although the Giants had already decided on a new coach, they knew they needed to interview a black guy, so they were just satisfying the rule by interviewing Flores, who never really had a shot at the position.
It is easy to understand why Flores would be upset by this sequence of events. It seems wrong to interview someone who was never being seriously considered. And if you are going to conduct interviews with people who have no chance of being selected, those interviews should absolutely occur prior to the announcement of any decision – whether internally or externally. But a few hard truths need to be addressed. First, if you make a rule that obligates teams to interview minority candidates for every position, it is almost a given that some of those interviews will be conducted merely to satisfy the rule. The truth is that when it comes to high-level openings in any organization, the leadership often finds consensus on a few possible candidates before the search formally begins. It is standard practice to interview more applicants than the smaller group of favored candidates. It must also be said that there may not always be a qualified candidate available (one with the necessary experience) who belongs to a racial minority. In such a situation, then, the Rooney Rule would require that interviews would be conducted with minority candidates who have very little chance of being selected.
Thus, Flores’ experience illustrates many of the problems with affirmative action. The policy sometimes results in pressure to hire a less-qualified candidate in order to fill arbitrary quotas within an organization. Even qualified minority candidates (like Flores) are plunged into uncertainty that undermines their confidence and dignity. If they are invited for an interview, do they really have a shot, or are they just being used to satisfy Human Resources? If they are offered a position, can they assume they really are the best candidate, or would they simply be a “diversity hire”? This is to say nothing of the unsavory position of employers who would almost certainly feel bad about interviewing candidates knowing they don’t really stand a chance, but who also need to jump through bureaucratic hoops like the Rooney Rule.
The Rooney Rule was established in part because a majority of NFL players are black – and yet very few team owners and head coaches are. But this points up another contradiction. Last season, there were two black head coaches in the NFL (out of 32 teams). To approximate the percentage of black men in the general population, we would perhaps expect one more black head coach – maybe two. An underrepresentation of this size seems insignificant.
But maybe we are looking to ensure that the number of black coaches is in line with the percentage of black players in the NFL? About 60% of players identify as black. If we’re operating under the assumption that about 60% of head coaches should be black, then there is a huge underrepresentation. But if 60% of players are black, then by the logic used to justify selecting a black woman for the Supreme Court, doesn’t this mean that whites are significantly underrepresented in the league? They represent about 65% of the population, but only about 30% of NFL players. If we apply the logic of affirmative action consistently, shouldn’t there be some administrative effort to ensure that there are more white players in the league? Still, rather than fostering greater inclusion and diversifying the team rosters in this way, the advocates of affirmative action call to extend these disparities and carry them over into the realm of coaching and management through policies like the Rooney Rule.
Taking the Supreme Court and NFL cases together, then, we find some troubling phenomena. First, we find a demand that the demographic makeup of any organization or institution should parallel the proportions of each group in the general population. In line with the first dictum, we find that any overrepresentation of a majority group represents an injustice that must be rectified (as observed in the Supreme Court). But contradicting the first principle, we also find that the overrepresentation of a minority group is not a concern (and, in fact, must be extended to additional realms), as is the case in the NFL.
The logical contradictions are unmistakable, and they are not without social consequences. The theory of affirmative action is clearly premised on addressing disparities that were the product of historical injustice. It’s undeniable that the legacy of historical discrimination has ramifications in the present, but this is different than saying that the same forms of discrimination continue today. The problem is that addressing past injustices in the present – a present with far, far less discrimination than earlier eras – gives rise to new ethnic resentments and tensions. In short, in 2022, affirmative action actually works to perpetuate the sectarian conflict and segregation that it was originally meant to overcome.
In the coming term, the Supreme Court – likely with a new justice – will consider two cases that offer an opportunity to make good on O’Connor’s prediction. Both Harvard and the University of North Carolina face challenges to their policies of race preferences in college admissions. In the past, the Court has ruled against similar policies, only to have the offending institutions find ways to work around the letter of those decisions and continue the preferential treatment of certain demographics. Hopefully, the Court will make the most of this latest chance to recognize the great progress in overcoming prejudice in America by unequivocally eliminating these affirmative action policies. In so doing, they would affirm our democracy – and the principle of equality before the law that it valorizes.