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Culture War Roundup for the week of October 31, 2022

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Just a quick Sunday morning reflection, but just wanted to briefly float an idea about affirmative action, ethnic identity, and university reform. As most people probably know, the Supreme Court is widely expected to strike down affirmative action in the near future. However, speaking as someone well ensconced within the very apse of the Cathedral, I'm doubtful it will change much; Admissions inevitably involves a huge amount of illegible subjective decision-making, and the religion of DEI means that there will be no shortage of reasons to prefer candidates from under-represented minority backgrounds. Sadly, I expect this to continue trumping any kind of class-based affirmative action, for which a far stronger moral case can be made.

If the US is indeed headed towards a new regime of ethnic spoils, how can young Americans who don't benefit from being in an officially recognized URM group - especially those who are nonetheless disadvantaged - still reap spoils of their own in the higher education systems? There are two particular groups I have in mind here. The first is Asian-American students, long the ones who have paid most of the price for boosting enrollment of otherwise underrepresented minorities, while the second is white Americans, especially those from working-class or otherwise economically underprivileged backgrounds.

I wonder if a similar solution might work in both cases. Specifically, is there any reason a new private university couldn't declare as part of its mission statement that it is dedicated to "understanding and promoting Asian and Asian-American identities", or some such, and require all candidates to submit a personal statement spelling out their identity or affinity with one or more aspects of Asian or Asian-American culture? Of course, non-Asian candidates wouldn't be barred from applying, and you'd probably want to take a hefty chunk of non-Asian students anyway, but it would provide a plausible and conveniently illegible selection mechanism to ensure that Asians and Asian-Americans applying to the university would have a natural advantage in getting in.

Could something similar work for white students? As stated so baldly, I think not. "Whiteness" as an identity is seen as too toxic, too vague, and too novel an identity to ground any kinds of claims for preferential treatment; any scholarship program for self-identified White students would be regarded with utter hostility, and would be a poison chalice for any student foolish enough to accept it. What might be more acceptable is to found institutions dedicated to one or another group of "hyphenated-Americans", the most obvious candidate groups being Irish-Americans, Italian-Americans, and Polish- (or more broadly Slavic-) Americans. Again, in each of these cases, you wouldn't have any kind of explicit cultural discrimination in place, but candidates could be assessed heavily based on how deep and sincere their affiliation, identity, or attachment to the given identity was, as expressed in their relevant candidate statement.

While any such institution would be the target of snarky articles from the New York Times et al., I think that if done sincerely (and ideally using the language of DEI) it would be hard to truly tar the endeavor with the charge of Asian- or white-supremacism. There's simply too much obvious conceptual overlap with existing programs that favor URMs, so to truly rail against it, commentators would have to say the quiet part out loud, so to speak, which would alienate moderates.

Of course, the really hard part would be making these universities places that students actually wanted to go to. For my part, I think the current higher-education system in most of the world is a stagnant cartel, with actual teaching being near the bottom of priorities, and the whole edifice is ripe for disruption. The main challenge to overcome would be the brand power of the old guard, especially the Ivy Leagues, and that's hardly a trivial obstacle to overcome. Perhaps the best two initial strategies in this regard would be (i) hiring a bunch of very good emeritus faculty, who could write excellent letters of recommendation for grad school etc., and (ii) focusing in the first instance on teaching disciplines with relatively legible outcomes, e.g., material sciences, machine learning, data science, mathematics, etc., rather than the humanities. Over a few years, I think it would be entirely possible to cultivate a reputation for providing a superb education in these disciplines, such that employers would have to take note.

All of this would require a large amount of startup capital, but there are Silicon Valley libertarian-types who could - ideally anonymously - bankroll this kind of operation (so Peter Thiel, if you're reading, get in touch).

But perhaps I'm being naive, and there are obstacles here that I'm not seeing. What do you all think?

I think it is clear that Gorsuch and Kavanaugh have been laying the groundwork to engineer an opinion that all of the titles of the Civil Rights Act protect white and asian people from discrimination as surely as they protect black people. That was their long game in Bostock, which held that trans people are protected under the Civil Rights Act via the syllogistic logic that the CRA bans discrimination on account of sex, so (roughly) it is a violation to treat a man who wears a dress differently from how you treat a woman who wears a dress. I predicted that this was their intent in Bostock, and I think it was Gorsuch who indicated as much during the oral arguments in the affirmative action case -- I can't remember his exact phrasing but he invoked Bostock and asked why the same logic shouldn't apply to the same language in a different title of the CRA.

If SCOTUS clarifies the Civil Rights Act as protecting all races equally, then every tool that has been used to police covert discrimination against black people over the past century (sting operations, disparate impact theories, indications of animus, etc.) could in theory be used to police covert discrimination against white/asian people ("holistic" applicant reviews, rhetoric about "dismantling whiteness," etc.).

At that point all that is needed is a sufficiently motivated executive. Ron DeSantis in particular has proven apt at using the tools pioneered by civil rights activists to effect conservative change, and has been pretty sharp with other types of executive power to curtail liberal excesses.

So I don't know what odds I give it of coming to pass, but it does seem like the pieces are falling into place for a conservative campaign to dismantle affirmative action across the entire ambit of the Civil Rights Act, which is much broader than just higher education -- and to fight back against a slide toward ethnic spoils.

The biggest threat to this campaign is if the GOP nominates Trump instead of DeSantis. Trump can be counted on to fumble the opportunity, as he does everything. At this point I am hoping that fate intervenes to secure the nomination for DeSantis.

If SCOTUS explicitly clarifies the Civil Rights Act as protecting all races equally, then every tool that has been used to police subtle discrimination against black people over the past century (sting operations, disparate impact theories, indications of animus, etc.) could in theory be used to police subtle discrimination against white/asian people ("holistic" applicant reviews, rhetoric about "dismantling whiteness," etc.).

But it won't. If the Supreme Court puts out a ruling that says "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. And by the way, we aren't fooled by the 'Asians have bad personality' crap, George Wallace could have come up with that one, so cut it out.", the people in charge of all those tools will simply ignore it. Their allegiance is to AA/antiracism/DEI first and to the institutions they serve a distant second. Just like with Heller and Bruen, the people (university administrators, alphabet-agency bureaucrats, and lower court judges) who have to change their behavior to implement the decision simply will not, and the Supreme Court will be powerless to do anything about most of it. A few more cases might make it up to SCOTUS, but all SCOTUS can do is issue strongly-worded opinions. And eventually SCOTUS will turn left and AA will be officially allowed again.

Even President DeSantis can't solve this because he can't just fire the bureaucrats.

President DeSantis can investigate these universities for racial discrimination and take away their federal funding if they're discriminating.

President DeSantis can investigate these universities for racial discrimination and take away their federal funding if they're discriminating.

He could direct the Department of Education to investigate. They would investigate and find the universities had done nothing wrong except maybe not enough blacks and Hispanics were admitted.

Is the Dept of Education under the executive? If so can't he just fire everyone and place his own people there?

No, he can only fire the political appointees, not the civil servants.