With the dust still set­tling fol­low­ing the Supreme Court’s his­toric gut­ting of Affir­ma­tive Action admis­sions poli­cies in US col­leges and uni­ver­si­ties as we wait to see how this new legal real­i­ty is going to play out, there’s a temp­ta­tion to reflect on all the now-passed fig­ures who worked for the now-lost accom­plish­ments. And while those indi­vid­u­als obvi­ous­ly include key civ­il rights lead­ers like Mar­tin Luther King, it’s worth recall­ing just how impor­tant the open­ing up of US uni­ver­si­ties to black stu­dents was to anoth­er pair of fig­ures who faced a sim­i­lar fate: JFK and RFK serv­ing as his attor­ney gen­er­al. As Jim DiEu­ge­nio dis­cuss­es in these inter­views and in his key 4‑part essay on JFK’s civ­il rights lega­cy (in par­tic­u­lar, Part 3), the open­ing of col­leges and uni­ver­si­ties to black stu­dents was a key piece of a much larg­er rev­o­lu­tion in Amer­i­can civ­il rights envi­sion by the Kennedy broth­ers. A rev­o­lu­tion that obvi­ous­ly was nev­er allowed to real­ly hap­pen thanks to their assas­si­na­tions.

And as DiEu­ge­nio points out, it was an envi­sioned civ­il rights rev­o­lu­tion that has been sub­se­quent­ly large­ly for­got­ten and/or purged from our col­lec­tive mem­o­ry of the Kennedys’ lega­cy. So with the Supreme Court on course to sys­tem­at­i­cal­ly dis­man­tle most of the civ­il rights gains of the 20th and 21st cen­tu­ry, per­haps now is a good time to recall that the rever­sal of Affir­ma­tive Action rep­re­sents a rever­sal of one of the civ­il rights gains the Kennedy broth­ers were pri­or­i­tiz­ing before the nation­al secu­ri­ty state assas­si­nat­ed them (and MLK) and got away with all of it.

Because as Elie Mys­tal point­ed out in the fol­low­ing piece in The Nation, while much of the cov­er­age of the Stu­dents for Fair Admis­sions v. Har­vard rul­ing has point­ed out that it seem­ing­ly left open the option of main­tain­ing a racial­ly diverse stu­dent body through oth­er means like tak­ing into account the con­tent of stu­dent essays that reflect of how a stu­den­t’s race impact­ed their life, that inter­pre­ta­tion of the rul­ing ignores the oth­er lan­guage in the rul­ing. Lan­guage that makes it unam­bigu­ous­ly clear that the only way for col­leges and uni­ver­si­ties to com­ply with the rul­ing is to reduce the num­ber of admit­ted black stu­dents.

As Mys­tal also notes, while the rul­ing did­n’t explic­it­ly warn uni­ver­si­ties that they will face legal reper­cus­sions should they neglect to reduce the num­ber of admit­ted black stu­dents going for­ward, such warn­ings weren’t nec­es­sary. Stephen Miller and his Amer­i­ca First Legal Foun­da­tion (AFLF) wast­ed no time at all warn­ing col­leges and uni­ver­si­ties that he will be com­ing for them if there isn’t a sig­nif­i­cant drop in the num­ber of black stu­dents. And don’t for­get that the AFLF is one of the many spin-offs of the Coun­cil for Nation­al Pol­i­cy (CNP)‘s Con­ser­v­a­tive Part­ner­ship Insti­tute (CPI). So while it may sound like Stephen Miller is the one mak­ing these threats, he has CNP’s immense pow­er behind him. This is a good time to recall how the ide­ol­o­gy of the CNP is real­ly the ide­ol­o­gy of the Con­fed­er­a­cy.

So while the over­turn­ing of Affir­ma­tive Action rep­re­sents a his­toric rever­sal of a US civ­il rights move­ment that many indi­vid­u­als fought, and in some cas­es, died for, it’s worth recall­ing that Kennedy broth­ers’ zeal for the open­ing up Amer­i­can col­leges and uni­ver­si­ties to black stu­dents was prob­a­bly one of rea­sons they were tar­get­ed for assas­si­na­tion in the first place. It’s also prob­a­bly a good time to recall that polit­i­cal assas­si­na­tions have con­se­quences. The kind of con­se­quences that can play out for gen­er­a­tions to come:

The Nation

The White Media Has Missed a Key Part of the Affir­ma­tive Action Rul­ing

The upshot isn’t just that col­leges must end affir­ma­tive action but that they’ll have to cut Black enroll­ment to avoid law­suits ques­tion­ing their com­pli­ance with the deci­sion.

Elie Mys­tal
July 12, 2023

The Supreme Court’s deci­sion in Stu­dents for Fair Admis­sions v. Har­vard, the case ban­ning race con­scious­ness in col­lege admis­sions, is facial­ly unen­force­able. That’s an under­re­port­ed aspect of Chief Jus­tice John Roberts’s gob­bledy­gook rul­ing, main­ly because most of the white peo­ple doing the report­ing have adopt­ed the gospel of “race-neu­tral” and “col­or blind­ness” with­out giv­ing those con­cepts a whole lot of crit­i­cal thought. But humans can­not retroac­tive­ly make them­selves unaware of race. Peo­ple can­not un-con­scious them­selves, and order­ing them to not think about race just ensures that they will. (In her dis­sent, Jus­tice Ketan­ji Brown Jack­son called it a “clas­sic pink-ele­phant para­dox.”) The court expects col­lege admis­sions offi­cers to know about the race of their appli­cants, and not care, but there’s real­ly not going to be any way to tell if col­leges are dis­re­gard­ing the pre­cise bit of infor­ma­tion the court wants them to.

As a result, the real upshot of the affir­ma­tive action rul­ing is this: Col­leges and uni­ver­si­ties must now pun­ish Black appli­cants by decreas­ing the enroll­ment of Black stu­dents, by any means nec­es­sary. That’s because the only way uni­ver­si­ties can show com­pli­ance with Roberts’s new rules is to show that they’ve decreased the num­ber of Black kids they let into school. Any­thing less than that will like­ly trig­ger lit­i­ga­tion from the white suprema­cists who have already promised to hunt down schools that admit too many Black peo­ple, as deter­mined by their own white-makes-right account­ing sys­tem.

This intend­ed revival of seg­re­ga­tion­ist edu­ca­tion­al oppor­tu­ni­ties flows direct­ly from the sheer hubris of Roberts’s attempt to leg­is­late how admis­sions offi­cers think, along with his open threats to uni­ver­si­ties that do not com­ply with his ver­sion of thought-polic­ing. In his deci­sion, Roberts expects that col­leges and uni­ver­si­ties will be respon­si­ble for self-enforc­ing his rul­ing, but he also warns them that addi­tion­al lit­i­ga­tion will be com­ing their way if they try a work-around to achieve racial diver­si­ty in their class­es. Again, the white media has made a big deal about the part of Roberts’s rul­ing where he says that col­leges can still con­sid­er how race has affect­ed an appli­cant (for instance, as described in a col­lege essay), but they’ve ignored the last lines of his rul­ing where he specif­i­cal­ly threat­ens schools that use those very essays to achieve racial diver­si­ty.

Roberts writes:

But, despite the dissent’s asser­tion to the con­trary, uni­ver­si­ties may not sim­ply estab­lish through appli­ca­tion essays or oth­er means the regime we hold unlaw­ful today…. “[W]hat can­not be done direct­ly can­not be done indi­rect­ly. The Con­sti­tu­tion deals with sub­stance, not shad­ows,” and the pro­hi­bi­tion against racial dis­crim­i­na­tion is “lev­elled at the thing, not the name.”… A ben­e­fit to a stu­dent who over­came racial dis­crim­i­na­tion, for exam­ple, must be tied to that student’s courage and deter­mi­na­tion. Or a ben­e­fit to a stu­dent whose her­itage or cul­ture moti­vat­ed him or her to assume a lead­er­ship role or attain a par­tic­u­lar goal must be tied to that student’s unique abil­i­ty to con­tribute to the uni­ver­si­ty.

I’s sho hopes Mas­sa Roberts thinks I is a good Negro wit the deter­mi­na­tion to keeps learnin’ my let­ters at the fan­cy school.

Roberts’s clos­ing flour­ish here is trash on many lev­els. First of all, I don’t recall any­one appoint­ing him as the chief judge for how Black peo­ple are sup­posed to over­come racial dis­crim­i­na­tion. Sec­ond, I’d argue that col­lege admis­sions offi­cers should pay spe­cial atten­tion to appli­cants who didn’t ful­ly over­come the hur­dles white peo­ple put in their way, but might do so in the future. And third, Roberts’s paean to mod­el minori­ties is still a white man’s wish­es dis­guised as a legal rem­e­dy: How in the hell will Roberts know if some essay read­er saw “courage and deter­mi­na­tion” in an appli­cant? How can Roberts pos­si­bly know what con­sti­tutes a unique con­tri­bu­tion to a uni­ver­si­ty, and how can Roberts place him­self in a posi­tion to sec­ond-guess what the admis­sions offi­cers on the ground think are worth­while con­tri­bu­tions?

Most impor­tant of all, how can Roberts, or any­body else, know if uni­ver­si­ties are fol­low­ing his rules? Roberts doesn’t tell us out­right, but he sure drops a pow­er­ful hint. In his deci­sion, he effec­tive­ly accus­es Har­vard of using a back­door quo­ta sys­tem to main­tain a con­sis­tent rate of Black stu­dents. He writes: “For the admit­ted class­es [at Har­vard] of 2009 to 2018, black stu­dents rep­re­sent­ed a tight band of 10.0%-11.7% of the admit­ted pool.” He adds in a foot­note: “Har­vard must use pre­cise racial pref­er­ences year in and year out to main­tain the unyield­ing demo­graph­ic com­po­si­tion of its class.”

Even if you think Roberts is right (and I’ll point out that Roberts offered no evi­dence that Har­vard “must” be using pre­cise racial pref­er­ences to achieve this kind of diver­si­ty, nor did the tri­al court, whose pre­sen­ta­tion of facts was what Roberts was sup­posed to be bound by, instead of his own con­glom­er­a­tion of fact-free infer­ences), how will a school like Har­vard prove, to Roberts’s sat­is­fac­tion, that it is not using racial pref­er­ences in the future?

The answer: Only a decrease in Black enroll­ment is like­ly to sat­is­fy Roberts. If Har­vard main­tains its class diver­si­ty, Roberts will accuse it of using racial pref­er­ences. If Har­vard increas­es Black enroll­ment, Roberts will accuse it of using new­ly uncon­sti­tu­tion­al race-con­scious­ness to pro­mote Black appli­cants—beyond his­tor­i­cal lev­els, he’ll like­ly say. Only a decrease in Black enroll­ment will sat­is­fy Roberts’s unwork­able stan­dard of ignor­ing race. It doesn’t actu­al­ly mat­ter how Har­vard goes about putting togeth­er its class: If this doesn’t pro­duce Roberts’s desired out­come of decreas­ing Black enroll­ment, Roberts will accuse it of think­ing about race.

Of course, Roberts doesn’t say by how much uni­ver­si­ties will have to decrease their Black enroll­ment to sat­is­fy his new legal require­ments. If he had, white media might actu­al­ly have report­ed on this aspect of his rul­ing. Instead, Roberts can almost cer­tain­ly rely on the efforts of out­sourced goons to keep an eye on uni­ver­si­ties and sue them if too many Black kids get in. One goon squad leader in par­tic­u­lar, Trump polit­i­cal advis­er Stephen Miller, has already vol­un­teered to do this work, and has basi­cal­ly said the qui­et part aloud.

Miller is cur­rent­ly the head of some accursed non­prof­it called “Amer­i­ca First Legal,” and short­ly after the rul­ing he released a video in which he explained that his orga­ni­za­tion sent threat­en­ing let­ters to 200 law schools. In the video, Miller said: “If they tried to vio­late, cir­cum­vent or bypass, sub­vert or oth­er­wise pro­gram around that rul­ing, we are going to take them to court. We are going to hold them to account.” In the let­ter to Har­vard Law School Dean John Man­ning, Miller warned him of “the con­se­quences that you and your insti­tu­tion will face if you fail to com­ply with or attempt to cir­cum­vent the Court’s rul­ing.”

I guess it was nice for Miller to send a let­ter, since his­tor­i­cal­ly these “warn­ings” about the “con­se­quences” of being too nice to Black peo­ple come in the form of burn­ing cross­es, but the upshot is the same. Miller is telling schools straight out that any attempt to main­tain diver­si­ty will be met with cost­ly lit­i­ga­tion. And the only way Miller or any­body else can know if a school is not attempt­ing to “bypass, sub­vert, or oth­er­wise pro­gram around” the court’s rul­ing is if those schools man­u­fac­ture a per­for­ma­tive decrease in Black enroll­ment.

It is worth not­ing that noth­ing in Roberts’s rul­ing or Miller’s pos­tur­ing requires uni­ver­si­ties to increase enroll­ment of AAPI stu­dents, the stu­dents these white-wing forces used to accom­plish their agen­da. Roberts was uncon­cerned that enroll­ment for AAPI stu­dents at Har­vard also remained in a tight band (around 18 to 20 per­cent) for a decade, and his rul­ing does not require uni­ver­si­ties to increase that num­ber. Miller is not threat­en­ing to sue schools if they don’t admit more AAPI stu­dents. As usu­al, the con­cerns of AAPI stu­dents are left whol­ly unad­dressed by this rul­ing, a fact that some Asian Amer­i­cans who have cel­e­brat­ed the deci­sion seem to delib­er­ate­ly ignore. The point, for these peo­ple, is that Black enroll­ment goes down, not that AAPI enroll­ment goes up.

I don’t know how many Black peo­ple Miller or Roberts think should be enrolled in a col­lege or uni­ver­si­ty, but how­ev­er many Black kids are enrolled right now is too much for them. The sit­u­a­tion right now is the stan­dard that all future lit­i­ga­tion will be set against, and if schools don’t sig­nif­i­cant­ly decrease Black enroll­ment to the sat­is­fac­tion of white suprema­cists, Stephen Miller will be com­ing, and John Roberts will have his back. Uni­ver­si­ties were not using a quo­ta sys­tem before, but now they pret­ty much have to, with a Black enroll­ment num­ber low­er than it was before as the new hard cap.

...

The affir­ma­tive action ban is not race-neu­tral; it’s anti-Black. And that is pre­cise­ly how peo­ple like Roberts and Miller intend to apply their new rules.

———-

“The White Media Has Missed a Key Part of the Affir­ma­tive Action Rul­ing” by Elie Mys­tal; The Nation; 07/12/2023

“I don’t know how many Black peo­ple Miller or Roberts think should be enrolled in a col­lege or uni­ver­si­ty, but how­ev­er many Black kids are enrolled right now is too much for them. The sit­u­a­tion right now is the stan­dard that all future lit­i­ga­tion will be set against, and if schools don’t sig­nif­i­cant­ly decrease Black enroll­ment to the sat­is­fac­tion of white suprema­cists, Stephen Miller will be com­ing, and John Roberts will have his back. Uni­ver­si­ties were not using a quo­ta sys­tem before, but now they pret­ty much have to, with a Black enroll­ment num­ber low­er than it was before as the new hard cap.”

Reduce black enroll­ment or Stephen Miller will take your insti­tu­tion to court. That’s the mes­sage sent to uni­ver­si­ty admis­sions boards across the US, espe­cial­ly at Amer­i­ca’s Ivy League insti­tu­tions. No one is going to force uni­ver­si­ties into doing this. It’s more of an implied threat. A big enough threat to coax uni­ver­si­ties into proac­tive­ly reduce black admis­sions on their own.

Also keep in mind that Stephen Miller’s Amer­i­ca First Legal Foun­da­tion (AFLF) is one of the many spin-offs of the CNP’s Con­ser­v­a­tive Part­ner­ship Insti­tute (CPI). So when Stephen Miller is mak­ing these kinds of threats, the most pow­er­ful force in Amer­i­can pol­i­tics today is back­ing that threat up:

...
This intend­ed revival of seg­re­ga­tion­ist edu­ca­tion­al oppor­tu­ni­ties flows direct­ly from the sheer hubris of Roberts’s attempt to leg­is­late how admis­sions offi­cers think, along with his open threats to uni­ver­si­ties that do not com­ply with his ver­sion of thought-polic­ing. In his deci­sion, Roberts expects that col­leges and uni­ver­si­ties will be respon­si­ble for self-enforc­ing his rul­ing, but he also warns them that addi­tion­al lit­i­ga­tion will be com­ing their way if they try a work-around to achieve racial diver­si­ty in their class­es. Again, the white media has made a big deal about the part of Roberts’s rul­ing where he says that col­leges can still con­sid­er how race has affect­ed an appli­cant (for instance, as described in a col­lege essay), but they’ve ignored the last lines of his rul­ing where he specif­i­cal­ly threat­ens schools that use those very essays to achieve racial diver­si­ty.

...

Of course, Roberts doesn’t say by how much uni­ver­si­ties will have to decrease their Black enroll­ment to sat­is­fy his new legal require­ments. If he had, white media might actu­al­ly have report­ed on this aspect of his rul­ing. Instead, Roberts can almost cer­tain­ly rely on the efforts of out­sourced goons to keep an eye on uni­ver­si­ties and sue them if too many Black kids get in. One goon squad leader in par­tic­u­lar, Trump polit­i­cal advis­er Stephen Miller, has already vol­un­teered to do this work, and has basi­cal­ly said the qui­et part aloud.

Miller is cur­rent­ly the head of some accursed non­prof­it called “Amer­i­ca First Legal,” and short­ly after the rul­ing he released a video in which he explained that his orga­ni­za­tion sent threat­en­ing let­ters to 200 law schools. In the video, Miller said: “If they tried to vio­late, cir­cum­vent or bypass, sub­vert or oth­er­wise pro­gram around that rul­ing, we are going to take them to court. We are going to hold them to account.” In the let­ter to Har­vard Law School Dean John Man­ning, Miller warned him of “the con­se­quences that you and your insti­tu­tion will face if you fail to com­ply with or attempt to cir­cum­vent the Court’s rul­ing.”

I guess it was nice for Miller to send a let­ter, since his­tor­i­cal­ly these “warn­ings” about the “con­se­quences” of being too nice to Black peo­ple come in the form of burn­ing cross­es, but the upshot is the same. Miller is telling schools straight out that any attempt to main­tain diver­si­ty will be met with cost­ly lit­i­ga­tion. And the only way Miller or any­body else can know if a school is not attempt­ing to “bypass, sub­vert, or oth­er­wise pro­gram around” the court’s rul­ing is if those schools man­u­fac­ture a per­for­ma­tive decrease in Black enroll­ment.
...

We have yet to real­ly see how col­leges and uni­ver­si­ties are going to respond to this rul­ing. But we can be con­fi­dent that at least some uni­ver­si­ties will attempt to main­tain a diverse stu­dent body despite the rul­ing, just as we can be con­fi­dent Stephen Miller’s AFLF will be there to wage a high-pro­file law­suit. And with the ghosts of JFK’s assas­sins cheer­ing them on. Along with the Roberts right-wing major­i­ty, which pre­sum­ably has a lot in com­mon with those assas­sin ghosts.