Jewish institutions can and should defend Jewish interests. But Jewish institutions can also seek out universal justice. For Jews, parochialism on the one hand and love for the stranger on the other are equally essential to a good and holy life. Unfortunately, it is sometimes the case that these aims come into conflict.
The constitutional challenge to affirmative action that will soon be argued before the Supreme Court is not one of these cases. For when it comes to the use of explicit racial discrimination in admissions to favor one set of applicants over another, the interests of Jews and the cause of equal justice happen to fall on the same side—against affirmative action.
Not only is affirmative action bad for Jews when it comes to their interests as a population group; not only was such logic used for decades as an explicit means of keeping Jews in their place; it is also unjust and a violation of the 14th amendment’s equal-protection clause.
It is, therefore, sobering and disappointing to see several mainstream Jewish institutions positioning themselves on the wrong side of the issue—especially since the American Jewish Committee, the Union for Reform Judaism, and the Anti-Defamation League once stood steadfast against such injustice.
The Supreme Court last took up the issue of racial preferences in two cases involving the University of Michigan a decade ago. Its ruling was split. While a public university could not use any quantitative system of racial preferences such as points or quotas, the court found, it could still take race into account to attain a “critical mass” of students of each group to obtain “the educational benefits that flow from a diverse student body.”
Things have changed since those decisions. The United States is more racially diverse, and universities have more and more applicants who do not fit into the stark racial categories they have traditionally used. Many states have curtailed or eliminated racial preferences and have not seen education at their public universities suffer. And, perhaps most important, Justice Samuel Alito has replaced Justice Sandra Day O’Connor, who was the author of the most important of the 2003 decisions, Grutter v. Bollinger—and there is every reason to believe Alito casts a colder eye on these matters than O’Connor did.
The case at issue this year, Fisher v. Texas, involves the “Top Ten Percent Plan” at the University of Texas. It requires the admission of the top 10 percent of any high school class in Texas. Once those students are admitted, the University of Texas then admits a number of other applicants through an admissions process in which race is used as a factor.
An applicant named Abigail Fisher filed suit against the plan. Her lawyers argue that because the “Top Ten Percent Plan” draws students from all over the state, the University of Texas is already one of the nation’s most racially diverse universities. Supplementing such diversity with racial preferences violates the rationale of Grutter. O’Connor’s contention that the state had an interest in a “critical mass” of each race at its universities is not at stake when, for example, the University of Texas discriminates against Asians and gives favor to Latinos after the “Top Ten Percent Plan” has already admitted more Latinos than Asians. For its part, Texas argues that it wants to ensure not only diversity in every matriculating class, but racial diversity in every classroom. It must therefore take race into account in the supplemental admission. Fisher’s team counters: If Grutter’s allowance for racial preferences in the search for a “critical mass” merely serves to grant wide discretion to admissions officers, then the Grutter decision itself is the problem—and it should be overturned because it violates the 14th amendment guarantee for equal protection under the law.
Such a ruling should be celebrated by Jews. The Texas system undermines American meritocracy, stigmatizes successful blacks and Latinos, closes opportunities to hardworking citizens on account of their skin color, fosters racial resentment, undermines the educative mission of the university, and otherwise maintains a crude racial classification system. If the court finds for Fisher, it would be a victory for the “colorblind Constitution” Justice John Marshall Harlan spoke of in his profound—and lone—dissent to Plessy v. Ferguson in 1896.
And for most of the past century, Jews would have celebrated such a decision, as would the communal organizations they supported. For Jews who grew up in the first half of the 20th century knew in their marrow the pain and difficulty caused by racial preferences—racial preferences for WASPs, that is. Such preferences, used against them, limited their prospects and closed off pathways to success. The trouble began soon after the turn of the century, following the great wave of Jewish immigration that began in the 1880s, when administrators at many elite educational institutions began to believe they were admitting too many Jews. Students of Jewish descent made up 7 percent of the Harvard freshman class in 1900, 10 percent in 1909, 15 percent in 1915, and 21.5 percent in 1922. They were disproportionately successful academically, far outperforming their Gentile classmates in, among other things, degrees with distinction.
Jews came to be viewed as a threat to the existing order of the American elite, and so the top schools in the country set explicit and secret quotas for the number of Jews they would allow in—generally in the realm of 5–15 percent. Such quotas were justified on several grounds. One Harvard official admitted to “the disinclination, whether justified or not, on the part of non-Jewish students to be thrown into contact with so large a proportion of Jewish undergraduates.”
A. Lawrence Lowell, Harvard’s president, cited the apparently much more benign goal of racial harmony as the impetus behind the quotas. “The anti-Semitic feeling among the students is increasing and it grows in proportion to the increase in the number of Jews,” he wrote to a Jewish lawyer and Harvard alumnus. “When?.?.?.?the number of Jews was small, the race antagonism was small also. Any such race feeling among the students tends to prevent the personal intimacies on which we must rely to soften anti-Semitic feeling. If every college in the country would take a limited proportion of Jews, I suspect we should go a long way toward eliminating race feeling among the students, and, as these students passed out into the world, eliminating it in the community.”
But when Lowell publicly discussed his plan for a quota system, the outrage was such that he could not go through with his intended design—which was already in place at Princeton and Yale, where it had been imposed in secret. Instead, a committee of Harvard faculty passed something in 1923 remarkably similar to Texas’s “Top Ten Percent Plan”: a top-seventh plan that took boys from the top seventh of their classes across the country. Such a plan hoped to draw more Gentiles from the South and West and fewer Jews from the tenements. But just as has been the case in Texas, the plan did not work as the designers had hoped. A few years later, Lowell quietly imposed an anti-Jewish quota of 15 percent.
Ending explicit discrimination against Jews was one of the key issues for Jewish communal organizations in the United States. It was a triumph for Jewish acceptance in the United States when these private quotas were abolished in the 1950s. But with the rise of the civil-rights movement and the noble effort to integrate higher education, a new system of racially conscious preferences became the order of the day in the late 1960s. The term “affirmative action” was originally intended to describe aggressive efforts to find and recruit academically worthy minority candidates for positions in college and in the workplace. Racial quotas were banned under the terms of the Civil Rights Act of 1964.
But without quotas, it proved difficult to get the kinds of numbers administrators and activists wanted to see, and soon thereafter, they began to use race as a weight to tip scales in the favor of minorities, blacks especially. This was highlighted by the first case against affirmative action to make it to the Supreme Court: Regents v. Bakke, in 1974. Allan Bakke, a white male, was denied admission to the University of California, Davis, School of Medicine (a public university) because the school had reserved a predetermined number of places for minority applicants. The Supreme Court ruled that this quota system was unconstitutional—but condoned the use of race as some kind of factor in admissions.
The AJC and Anti-Defamation League both supported Allan Bakke, with the ADL going so far as to argue in its brief that “a difference in race cannot be an appropriate justification for different treatment by the state.” As the AJC put it, “The use of racial quotas as advocated by the University of California would sacrifice the basic principles of racial equality for expediency and short-term advantage?.?.?.?and [would be] profoundly damaging to the fabric of the American society.” The Union of American Hebrew Congregations (the precursor to the Union of Reform Judaism) did not file a brief, but opposed quotas and endorsed affirmative action as only a temporary, equalizing remedy to past discrimination.
Despite its overwhelming liberalism, Jewish public opinion was then and remains deeply discomfited by affirmative action. In his landmark 1989 study “The Dimensions of American Jewish Liberalism,” Hebrew Union College’s Steven M. Cohen found that roughly half of Jews opposed affirmative action, even more than the generally more conservative non-Jewish whites. A recent Quinnipiac poll suggests that Jews are still roughly evenly split on the question of racial preferences.
Nonetheless, by the time the Grutter case came before the court in 2003, the AJC and URJ switched sides and defended racial preferences, even if their rationales in Bakke—against sacrificing “the basic principles of racial equality for expediency and short-term advantage” and only for the then four-decades-old practice as a temporary salve—could be used to argue the opposite position. Now, as the Fisher case nears its day in the high court, the ADL has also flipped.
These communal organizations have tried to reconcile these changes by seizing on the legal distinction made between hard-and-fast quotas and discretionary and amorphous racial considerations. It was quotas—and not mere race considerations—that victimized the Jews, they say. This is really a distinction without a difference: For what does it mean to attain a “critical mass” of a certain race, as Sandra Day O’Connor permitted, if a numerical goal is not met? Moreover, it wasn’t just quotas that victimized the Jews but “flexible” systems like Harvard’s top-seventh plan that are now mimicked by the University of Texas. Harvard did not curtail Jewish enrollment as much as it wished—but it still closed itself off to many Jews who would otherwise have been accepted as students in good standing.
The AJC submitted an amicus curiae brief with the Union for Reform Judaism in the Fisher case. They argue that while the quotas against Jews were “inflexible systems” rooted in racism, today’s “flexible, individualized admissions policies that considered race as only one among many aspects” are crucial to racial diversity on campus, which is in turn essential to a good education of “intellectual curiosity and cross-cultural acceptance.” Individuals, by virtue of their skin color at least in part, the brief tells us, have different perspectives. Sharing such perspectives on a college campus, in the classroom as well as in informal settings, is an important element of education. Close proximity, moreover, helps break apart stereotypes. Thus, the brief tells us, a “minority student excelling in geometry or the sciences” challenges stereotypes held by minorities and whites.
The Anti-Defamation League brief says much the same thing: “Diversity in education is critical, not only because of its contribution to the educational experience but also as a factor in the development of a fully integrated society which honors inclusiveness and which is free of racial and ethnic hatred.”
By diversity, the ADL means not intellectual diversity but purely racial diversity. And the conflation of racial and intellectual diversity is a telling constant in both briefs. The Union for Reform Judaism even uses the Talmud to support its position on affirmative action, quoting from Berakhot 58a on the website of its lobbying group, the Religious Action Center: “If one sees a great crowd, one should thank God for not having made them all of one mind. For just as each person’s face is different from another, so is each person’s mind different from any other mind.”
This is specious. The rabbis of the Talmud were praising intellectual diversity (and for good reason!), but the policy here is racial diversity—and the rabbis are being used as a prop to support it. For the quotation to work as an argument for racial preferences, one must assume that skin color begets ideas. The second sentence—“For just as each person’s face is different from another, so is each person’s mind different from any other mind”—does link appearance to ideas, but not in a causal way. The rabbis are drawing a helpful analogy for us to understand their point better. They are not arguing that there is a relationship between differences in faces and differences in minds.
This quotation’s incompatibility with the policy it is supposed to defend should be enough to invalidate its use. But it gets worse. The translation used here is terribly misleading and the quotation itself incomplete.
First, the actual quotation begins as follows: “If one sees a great crowd of Israelites, one should thank God for not having made them all of one mind.” This is a remark about differences within the Jewish tribe, not as a universal matter. The rabbis are talking exclusively about the diversity of mind and face within one people; they are not praising cross-cultural exchange. This point is driven home immediately before the quotation in a statement by Rabbi Hamnuna that runs, if you see an Israelite you should give a blessing, but if you see a heathen you should quote Jeremiah at him: “Your mother shall be sore ashamed, she that bore you shall be confounded; behold, the hindermost of the nations shall be a wilderness, a dry land, and a desert.”
Not exactly a race-based admissions policy there, to put it mildly.
The misreading and misrepresentation of this quotation by the official lobbying organization of Reform Judaism is more than textually incredible; it’s emblematic of the blind spot in which these Jewish organizations have decided to plant their flag. They subscribe to the conventional wisdom that race makes a mind—that colorblindness is not only a false hope, but one demeaning to those who rightly embrace race as the defining fact of their existence.
This is why the AJC, URJ, and ADL neglect the serious social-science work over three decades demonstrating the significant downsides of race-based admissions. Simple contact between the races does not promote fellow feeling, but very often the opposite. Numerous studies have demonstrated a strong tendency toward self-segregation by racial groups. Anonymous surveys have also shown that affirmative action is a source of racial resentment that often stigmatizes minority students as products of preferences. By the end of college, students, especially minority students, have been shown to be especially disillusioned with the goal of “helping racial understanding.” Racial preferences are even linked to an enervation of student effort and the value students place on academic success. All in all, racial diversity for racial diversity’s sake does more harm than good.
Even more striking is this: Never do these organizations seem aware that their overarching argument about racial harmony was the same justification Harvard’s Lowell used to support the quotas and other systems against Jews. Not only do they endorse a version of his solution in the “Top Ten Percent Plan” and supplementary racial preferences, they endorse Lowell’s perverted argument.
The American Jewish Committee is the nation’s most prominent umbrella Jewish group. The Anti-Defamation League is the flagship of the fight against anti-Semitism. The Union for Reform Judaism is the anchor of the largest Jewish religious denomination. And they have now all spoken out for a practice contrary to Jewish interests, and in doing so have cherry-picked from the Jewish canon in a manner that is incompetent at best and knowingly sophistic at worst.
Racial preferences now exist as part and parcel of a higher-education system that too often promotes a fascination with identity politics over a true inquiry into what is just. The regression to the left-wing on display in these amicus briefs is another piece of evidence that our universities and their racial preferences can induce a moral blindness among our elites and the institutions they head. For the Jews, doing so leads to a denial of Jewish history and Jewish interest, a blatant rewriting of a difficult and strange text to affirm the fashionable dogma, and an undermining of the true equality for which the Jews of the 20th century were forced to fight so hard and for so long.