Published: June 29, 2023
Pittsburgh Post Gazette
In its decision arising from Harvard and the University of North Carolina, the Supreme Court held that both universities violated the 14th Amendment to the Constitution by employing racially discriminatory practices under the flag of affirmative action.
For decades we have seen warring judicial opinions on what counts as “good” racial discrimination in college admissions. No more.
As enforced by Diversity, Equity and Inclusion apparatchiks, affirmative action has created for its beneficiaries an entitled way of life that is unhinged from market forces and from fundamental notions of merit and fairness. Chief Justice Roberts, who authored the Harvard and UNC majority opinion, saw this coming years ago when he wrote that the best way to end racial discrimination is to stop discriminating on the basis of race. Yet we have persisted in the belief that we can draw fine lines based on skin color.
Why is it so hard for us to get this right? Over 150 years ago Abraham Lincoln got it right. Over five decades ago Dr. Martin Luther King, Jr., got it right. Yet we’re still struggling. In the eyes of many, especially in higher education and increasingly in corporate America, character has become subordinate to identity.
To illuminate our folly I turn to the 1890s, when the Supreme Court in Plessy v. Ferguson validated racial separation in a Louisiana public transportation statute under the fictional veil of “separate but equal.” To put this in perspective, only three decades after 600,000 Americans had died in a war over enslaved black Americans, the Supreme Court gave the racists in America a mulligan.
The sole dissenter at the Supreme Court, Justice John Marshall Harlan, said the statute wasn’t designed to keep white people out of black rail cars but the opposite. Under the guise of equal accommodation to whites and blacks, the purpose was to keep blacks to themselves. “No one would be so wanting in candor as to assert the contrary,” he said.
Apologists for the Plessy Court referred to “the times.” But the Supreme Court had the Constitution’s Civil War Amendments staring it in the face. It also had the example of 350,000 Union soldiers who fought to end slavery and died for the cause. And it had the recent memory of Abraham Lincoln as a polestar for moral courage.
It wasn’t “the times.” Those justices were flat-out racists, and their pernicious work product caused a dangerous turn in American jurisprudence a half century later with which we are still dealing. More on that in a moment.
But first: What was happening elsewhere in the world in the 1890s? Let’s look at Cecil Rhodes in South Africa, the diamond magnate and favorite punching bag of certain self-righteous, historically ignorant academics in the United Kingdom, including the woke ideologues now in control of the very Trust meant to administer the terms of Rhodes’ will. The so-called Rhodes Must Fall movement has called him South Africa’s Hitler.
The facts? At the same time our Supreme Court handed down a plainly racist ruling in Plessy, Cecil Rhodes wrote into his will the requirements for his famous Rhodes Scholarship, including that “No student shall be qualified or disqualified for election to a Scholarship on account of his race or religious opinions.” Some racist that guy.
Diamond mining in the 19th Century was a dirty, dangerous business, and Rhodes was a man of his times. But, according to the careful analysis of Nigel Biggar, the Emeritus Regius Professor of Moral and Pastoral Theology at the University of Oxford, racist comments attributed to Rhodes are false, and his positive statements and practices embracing black Africans have been ignored.
The Rhodes Must Fall movement, Biggar concludes, is “really not interested in the complicated, morally ambiguous truth about the past.” Rhodes, he says, “was a moral mixture, but he was no Hitler. Far from being a racist, he showed consistent sympathy for individual black Africans throughout his life.”
Back to the true racists — the Plessy majority. They received their due in 1954 in Brown v. Board of Education, the landmark case disposing of the “separate but equal” myth. But in its righteous enthusiasm to correct Plessy, the Brown Court itself made a serious mistake that unwittingly perpetuated the evil of the earlier decision.
The Court based its decision on inequities in public education, an approach that has led us into the suffocating swamp of affirmative action. As the late Professor Alexander Bickel maintained, the Court should simply have focused on “Board” instead of on “Education,” about which it has never been expert. As a public body governed by the 14th Amendment to the Constitution, the “Board” should not have discriminated on the basis of race and neither should a private entity receiving federal funds.
With the decisions in the Harvard and UNC cases, we can say better late than never. But let’s not forget that Cecil Rhodes beat us to the punch by 125 years, “No candidate should be qualified or disqualified on the basis of race.” Sometimes you find wisdom in the darnndest places.
Peter Kalis, a Rhodes Scholar who earned a Doctor of Philosophy degree at the University of Oxford, was before his retirement chairman and global managing partner of K&L Gates LLP.