Salvo 02.17.2023 5 minutes

After Affirmative Action

United States Census 2020 Form

The contradiction of our post-Jim Crow civil rights enforcement scheme.

Editors’ Note

This piece was originally published at RealClearPolitics and was adapted from “The Great Unwokening” in the Summer 2022 issue of the Claremont Review of Books.

The betting odds are that the Supreme Court will soon rule against affirmative action. It is worth asking how we got here, and what we should do about it.

Why is affirmative action in jeopardy? The main reason, ironically, might be the increasing ethnic diversity of the United States. In 1960, the U.S. was roughly 88% white and 12% black. The census category “Hispanic” did not yet exist. Similarly, the U.S. did not have a separate “Asian” category for the less than one million Americans from various nations in Asia, though the 1960 census had separate boxes for some, but not all, Asian countries. Today the U.S. is 61% white and dropping. Among American children, the white/nonwhite population is rapidly approaching 50-50.

This demographic change is making our post-Jim Crow civil rights enforcement scheme unworkable. Passage and enforcement of the 1964 Civil Rights Act was an effort to end the tyranny of Jim Crow. Technically, the law made it illegal to discriminate on the basis of race, skin color, religion, sex, and national origin in most public and private domains, such as voter registration, employment, and public accommodations. But the interpretation of the law rapidly transformed from prohibiting categories of action to creating “protected classes” of people, to the point where it essentially pits white men—and now, with the introduction of sexual orientation as a protected class, specifically straight white men—against everyone else. Other than that shrinking group, all others are supposed to be “protected” from discrimination in our DEI (Diversity, Equity, and Inclusion) regime.

Thanks in part to our demographic revolution, this approach is increasingly rife with contradictions. The lawsuit against affirmative action at elite private and public institutions is on the docket because its plaintiffs are Asian Americans, a protected class. From the perspective of elite university admissions offices, Asian students overperform and thus make it hard to admit the number of non-Asian, nonwhite applicants the schools would like to admit, without affirmatively favoring their candidacy on the basis of their protected status. Kenny Xu, writing in the Spectator, notes that “an Asian American student must score 450 points higher on the SAT to have the same chance of admission as a black student with the [otherwise] same qualifications.” In other words, affirmative action pits protected classes against each other.

If the Supreme Court cuts the Gordian Knot and rules affirmative action illegal under the Civil Rights Act, and/or declares that it is unconstitutional, what should be the next step? Even without affirmative action, our administrative bureaucracies, dedicated to the principle of equality of outcome, will work mightily to sustain the division between protected classes of people and others. They will, after the fashion of previous supporters of racialized schools, practice massive resistance. They, like their predecessors, need to be fought.

One way to fight may be to rework the government’s racial identification scheme. At the heart of our diversity enforcement one finds America’s census categories. One cannot apply to a college, or for a job, a promotion, a loan, or much else without being asked to check off optional demographic boxes. That fosters what one might call a protected class consciousness, and sows the seeds for conflict between what the bureaucrats and activists now call BIPOC (Black, Indigenous, and People of Color), and anyone else. According to the logic of our civil rights regime, all nonwhite people, bound together under their oppressed status, share a fundamentally common interest.

The problem here is that by forcing all “people of color” into the same category, even after rapid demographic change fed by six decades of large-scale immigration, our legal regime points us toward civil war.

Voltaire once wrote that “If one religion only were allowed in England, the Government would very possibly become arbitrary; if there were but two, the people would cut one another’s throats; but as there are such a multitude, they all live happy and in peace.” James Madison was fond of that statement, which informed his famous argument for an extended republic in Federalist 10. “Extend the sphere,” Madison wrote, “and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”

Though we have extended the sphere with regard to protected classes, our enforcement bureaucrats act like it’s still 1964, with white men dominating the population and economy while everyone else scrambles for scraps. The binary enforcement guidelines reward people for identifying themselves among aggrieved, protected classes, ensuring that the American polity will remain divided and become more so as groups compete for the allocation of resources.

One way to counter this tendency is to extend the identity revolution further. If identity boxes must exist, why not make them more specific, allowing Americans to list their countries of origin, or even racial or ethnic identities beyond that. After all, it is not reasonable to put the descendent of indigenous people in, say, Bolivia, with a descendant of the (still largely Spanish more than African or indigenous) Mexican elite in the same box. And that puts aside the absurd idea of calling the descendant of a Nazi war criminal who fled to Argentina “Hispanic.”

The BIPOC identity is like the mirror image of the traditional racist perspective that all nonwhite people are alike. As such, it’s worth attacking on a moral basis. And extending the identity sphere would make it difficult for our cultural imperialists to sustain their efforts to impose the BIPOC identity on roughly half of the rising generation of Americans, and would, I suspect, point us away from cultural civil war by fostering assimilation after the fashion of previous generations of immigrants.

Allowing everyone to self-identify in the most specific way or ways they wish would explode the existing system of categorization, and could potentially disrupt and destabilize our racial caste system, as the number of protected classes proliferates beyond control.

Allowing for more genuine identity categories would point us toward civic peace, foster civil friendship among Americans of all background, and block the efforts of elites and activists to divide us to suit their own ambitions.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

The American Mind is a publication of the Claremont Institute, a non-profit 501(c)(3) organization, dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Interested in supporting our work? Gifts to the Claremont Institute are tax-deductible.

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