One of the hidden sources of division in the United States is the conceptual silo: the habits of thought, jurisprudence and reporting that segregates issues that feed on each other into separate debates, news reports and court cases. The segregation of debates and decisions about affirmative action, on the one hand, and about mass incarceration, on the other, is exemplary in this regard and worth digging into, as I do below.
Both phenomena are rooted in America’s tortured racial history. But affirmative action has been firmly placed by the Supreme Court in the diversity silo: Enhancing education and research by diversifying college campuses (the focus of the most celebrated of the affirmative action cases that have reached the Supreme Court) has been the only consistent justification for affirmative action that have survived continuous court battles against the policy.
Those battles have been regularly in the headlines since the 1978 decision in the case of the Regents of the University of California v. Bakke. Justice Lewis Powell, writing the plurality opinion, declared quotas unconstitutional over the objection of civil rights lion Thurgood Marshall. But Powell created a silo for affirmative action by (correctly)identifying diverse student bodies as a boon to education and a “compelling state interest.”
Meanwhile, the war on drugs that would flood American prisons with brown and black young men was ramping up in a separate silo, with a nakedly racial justification spelled out by Nixon retainer John Ehrlichman: “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. … We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.” Over in the affirmative action silo, the Nixon administration actually expanded on affirmative action measures that had been first given teeth by Lyndon Johnson Executive Order 11246. But the war on drugs, which ramped up dramatically in subsequent years and criminalized countless teenagers, overwhelmed whatever progress was made opening educational doors. But siloing made this reality invisible.
The assault on affirmative action that began in earnest with Bakke continues to this day, with an in-progress case charging Harvard with discriminating against Asian Americans. Meanwhile, as Michelle Alexander has so eloquently chronicled, the war on drugs has succeeded in creating a new Jim Crow in which much of poor Black America is trapped.
And the siloing of the two phenomena obscures the much of the rhetoric of the attacks on affirmative action (rhetoric that comes sometimes from Supreme Court Justices like the late Antonin Scalia) and much of the rhetoric that drove the war on drugs, feeds on centuries of stereotypes about Black intellectual and emotional inferiority that can be traced all the way back to the troubled mind of Thomas Jefferson.
In fact, the winding up of the war on drugs and the unwinding of affirmative action have worked in concert to reinforce stereotypes and to minimize the number of black and brown people who are able to escape from the remnants of the old Jim Crow and the upsurge of the New Jim Crow. But all this is obscured by the separate conceptual silos in which affirmative action and mass incarceration are debated.
The siloing was in full force on July 3, when Jeff Sessions rescinded two dozen guidance documents issued by pre-Trump administrations. Seven of the 24 recessions concerned affirmative-action. But media and public discussion focused predictably on them. Affirmative action, plumed with decades of headlines about wounded white (and, now, Asian lives) is a sexy subject, almost as sexy as the missing white woman story that scholars called a syndrome. This is in part because the division of labor in society, newsrooms and in our own limited working memories actually require some conceptual siloing. And the demographics of TV audiences demand even more siloing. But the siloing in the case of the Sessions announcement needs to be called out and, if possible, reversed.
For, left largely unmentioned in the coverage was the rescinding by Sessions of the fourth edition of the Disproportionate Minority Contact Technical Assistance Manual, issued by Sessions’ predecessor and GOP bogeyman Eric Holder. A key goal of this crushingly boring-sounding manual is to reduce, with the help of a “new and improved method to calculate and analyze disproportionality,” the rate of incarceration of minority youth in America.
The relationship between these incarcerations and affirmative action is straightforward: Youth caught in the coils of the criminal justice system are less likely to complete their K-12 educations, much less benefit from race-conscious efforts to diversify competitive campuses.
Indeed, the correlation between the spike in Black and Hispanic incarceration during the war on drugs and the failure of affirmative action to cure the underrepresentation of Blacks and Hispanics in higher education (reported upon in The New York Times in 2017) is unmistakable. Is this correlation causation? It’s worth finding out.
But to do so,we have to undo the conceptual segregation that keeps the decades-long effort to destroy affirmative action and the Obama-era effort to reform the criminal justice system in parallel but in separate silos, even as Sessions, who has expressed support for the suit against affirmative action at Harvard, washes the government’s hands of support for race-conscious admissions.
A great irony here is that no amount of siloing could stop Donald Trump, building his political brand in 2011 by sucking from the sewer of stereotypes, from not only asking if Barak Obama was illegally occupying the White House (thereby checking the Black criminalization box) but also asking how the then President could have gotten into Columbia and Harvard when “I heard he was a terrible student….I have friends who have smart sons with great marks, great boards, great everything, and they can’t get into Harvard.”
Though there is no Trumpian demagoguery and perhaps no deep racial animus in the current suit against Harvard, the subtext of stereotypes—which can be traced, as suggested above, all the way back to Thomas Jefferson’s attacks on Blacks in his Notes on the State of Virginia—clings to it in the form of a sort of static electricity picked up by anyone who uses America’s stereotype-saturated terminology of race. It is no accident, either, that Harvard, which Justice Powell pointed to as an example of the responsible pursuit of diversity, is in the crosshairs.
Part of the evidence provided by the plaintiffs are statistics (siloed away from important contextualizing information and statistics) that suggests that Asian applicants would have a steeply increasing chance of admission if they were white or Hispanic or, most of all, Black. Ignored in their filings are the findings of Goodwin Liu, now a California judge, and other scholars, who have demonstrated that eliminating all Black and Latino applicants from a pool does not significantly increase the chances of admission of non-Black or Latino applicants.
Of course, if there really is discrimination against Asian applicants to today’s Harvard, the university should suffer consequences. But it is important to remember that discrimination against Asians is not what the lawsuit is ultimately about. Destroying affirmative action is what the suit is about. It is something that Edward Blum, founder and president of the organization behind the suit, has been trying to do for decades. And by making Asians the face of his latest effort, he is taking advantage of the siloing of affirmative action not only with regard to the effects of mass incarceration but also with regard to itself.
For Asians (and white women like the one featured in his previous major case) have and continue to benefit from affirmative action in employment. The aforementioned London Johnson executive orders that put teeth into affirmative action is still used to open doors for people of all races and genders at major companies. It and a successor LBJ order were leveraged by white women decades ago to increase their ranks in academia.
And, what is more, the Small Business Administration for decades has run programs designed to boost minority (including Asian) entrepreneurs.
Affirmative action may, in the end, not be worth the price paid for it in resentment, stereotyping and the sewing of division between minorities who should be natural allies. But there is no way to determine that without taking it out of the conceptual silo in which it is debated and judged.