The American Jewish Affirmative Action About-Face

Affirmative action in higher education is arguably the most contentious political and social issue of the last half-century. Legal cases challenging affirmative action’s constitutionality have reached the chambers of the U.S. Supreme Court around once each decade, and in each instance American Jewish communal organizations have weighed in by submitting amicus curiae, or friend of the court, briefs in favor of either the petitioner or the defendant. In recent Supreme Court cases such as Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), Fisher v. Texas (2012) and Schuette v. BAMN (2013), Jewish organizations led by the “big three”—the Anti-Defamation League, the American Jewish Congress, and the American Jewish Committee—submitted legal briefs defending race-conscious university admissions policies on the grounds that diversity is a compelling state interest. Although this may seem like a given considering the liberal bent of many if not most American Jews, the Jewish stance on affirmative action has not always been supportive. In 1978, when the Regents v. Bakke case first successfully challenged affirmative action at the Supreme Court level, the big three American Jewish organizations all submitted amicus curiae briefs opposing affirmative action admissions policies in support of Bakke.

This phenomenon has received little attention in the mainstream or Jewish press. The clearest explanation given for this shift cites “legal and factual differences” between the late 1970s and the 2000s, “as well as the divergent political and ideological agendas of the various organizations” as the reason for the shift. Amicus curiae briefs filed in the Regents v. Bakke, Gratz and Grutter v. Bollinger cases, newspaper articles and press releases, as well as sociological and statistical surveys of Jews in higher education all suggest that official explanations provided by the Jewish communal groups are insufficient to explain the observed shift in stance on affirmative action between 1978 and the present. A better explanation seems to lie in Jewish accumulation of status and political power, as well as the rapidly expanding presence of high-achieving Asian-American students in academia.

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The term “affirmative action” was coined by President Lyndon B. Johnson in 1965 in Executive Order 11246, which required federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” It was assumed that ending discriminatory practices in the hiring and treatment of black employees would rectify past discrimination and bring about equality for African-Americans. However, in the late 1960s the government increased efforts to address our country’s lingering racial inequities. The Nixon administration’s Philadelphia Plan set specific goals and timetables for hiring minority workers in federal construction jobs. The Labor Department gave contractors three years to bring minority employment up to 20 percent. Other government-funded institutions began setting aside a certain proportion of places for minorities in job hiring and school admissions to comply with the law and in the academic year of 1970-1971, this type of quota-based affirmative action made its way into American institutions of higher learning.

The first legal challenge to affirmative action in higher learning came in 1974, when the DeFunis v. Odegaard case came before the U.S. Supreme Court. The petitioner charged that giving preference to minority applicants in professional schools constituted reverse discrimination. Although the Supreme Court ruled against overturning racial quotas, a similar case four years later would strike the first blow to this practice. Allan Bakke, a white NASA engineer, had applied to UC Davis Medical School in 1973 and again in 1974, only to be rejected both times. Bakke learned that the university had a special program in which 16 out of 100 spots were reserved for disadvantaged minorities—defined as blacks, Chicanos, Asians and American Indians. Bakke had near perfect grade point average and MCAT scores, and claimed that he was the victim of discrimination because in both years minority applicants were admitted with significantly lower grades and scores. Bakke filed suit, claiming that he had been rejected solely because of his race. His lawyer argued that UC Davis had denied his rights under the equal protection clause of the 14th Amendment to the Constitution, which states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The California state Supreme Court ruled in Bakke’s favor.

The university appealed the decision to the U.S. Supreme Court, arguing that they were required by law to provide minority applications with special treatment to balance out systemic cultural disadvantage and discrimination. Regents v. Bakke saw over 57 amicus curiae briefs submitted to the court, more than both the Pentagon Papers or the Julius and Ethel Rosenberg trial. Of the briefs filed, 41 defended the university, while 16 supported Bakke and his position that racial quotas were unconstitutional. The big three Jewish organizations were among the minority who supported Bakke, along with several other Jewish and non-Jewish civic organizations. These groups supported affirmative action as a form of specialized recruiting or remedial training for minorities, but they drew the line at rigid race or ethnic quotas.

Jewish organizations expressed a particular concern about racial quotas because prior to World War II numerus clausus quotas were used to limit the number of Jews in universities and other professions. After a prolonged struggle spearheaded by the “big three,” nearly all institutions of higher learning and professional schools abandoned their Jewish quotas by the 1960s. The re-emergence of quotas as a policy to aid disadvantaged groups was seen as a threat to the achievement-based society in which the Jews had become “one of America’s most successful ethnic groups with the nation’s highest per capita income and high representation in legal, technocratic and academic professions.” University of Virginia professor Robert Langbaum wrote bluntly that “more Blacks must necessarily result in fewer Jews.”

The Anti-Defamation League represented the conservative wing of the Jewish opposition to racial quotas. They argued that government programs which favored one group over another constituted an assault on the equal opportunity society Jews had fought so long to achieve. Their amicus brief, signed in conjunction with several explicitly Jewish and Jewish-dominated organizations, argued that the racial admissions quotas utilized by the university deprived Bakke of his constitutional right to equal protection under the law. “Even if the worthiness of the ends were to be acknowledged,” concluded the brief, “a difference in race cannot be an appropriate justification for different treatment by the state.”

Liberal organizations such as the Reform Union and the National Council of Jewish Women countered that quotas designed to help minorities were a far cry from malicious quotas designed to exclude the Jews. Although these groups did not publish briefs of their own, in internal publications they reiterated that America’s long history of racism had left blacks unequipped to compete on a level playing field, even after de jure discrimination had been outlawed. Government assistance to bring blacks up to the level of whites was the only way to end racial injustice.

The AJCommittee and the AJCongress spoke for the broad middle of American Jewry. They “split the difference” by supporting efforts to increase the numbers of blacks in key schools and professions, but rejecting fixed timetables or rigid quotas to achieve any kind of proportionality with the population. To sidestep any onus that might be placed on them as Jews for taking what could be considered an anti-black position, the AJCommittee recruited seven other ethnic professional and civic associations to cosign their amicus brief. This brief expressed a hardline opposition to the use of race in the institution’s admissions process, going so far as to say that American constitutional liberties would be “gravely undermined if the law were to give sanction to the use of race in the decision-making processes of governmental agencies.”

The court’s decision appeased both supporters and opponents of racially conscious affirmative action programs. In what would later become the famous “Powell opinion,” Justice Lewis Powell concurred with four justices that Bakke should be admitted and that Davis’ practices constituted an unconstitutional quota, yet he also agreed with the four other justices that race could be a factor in admissions. Justice Powell rejected the opinions of the court’s liberal wing that remediating societal discrimination could legally justify the use of race in admissions. Instead, he concluded that race could be a “plus” factor if the school was seeking diversity to improve educational learning. He looked toward the Harvard College admissions program, which allowed race to be the “plus” factor in a system with individual review without fixed racial percentage targets. One important outcome of this case was that the legal justification for affirmative action no longer rested in the notion that race-conscious activity could rectify contemporary societal discrimination or the history of racial discrimination. Justice Powell’s argument that a diverse student body presents a “compelling government interest” became the new justification for affirmative action.

Given the equivocal nature of the ruling, Jewish organizations and the university were both pleased with the outcome, since strict racial quotas were declared unconstitutional yet race could still be a factor in admissions, albeit an ancillary one. Arnold Forster, the ADL’s general counsel, said in a statement that the organization was satisfied with the outcome of the case, but not with Justice Lewis Powell’s opinion, saying, “In our view, it would seem difficult to allow race to be used as one factor without it becoming the determining factor … but happily, quotas or anything that adds up to quotas are outlawed.” The AJCongress reaffirmed its support for “effective and appropriate affirmative action programs that would help fully integrate minority communities into the mainstream of American life without imposing rigid and divisive racial criteria or the use of inflexible and stigmatizing quota systems.”

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Once the dust cleared after the Bakke decision, racial preferences in college admissions disappeared from national headlines for a decade or so. However, beginning in the early 1990s, several efforts to turn back race-based affirmative action were again raised at the local and state levels, most notably the California Civil Rights Initiative, or Proposition 209. Jewish grassroots organizations, with the support of the AJCommittee, led the coalition that attempted to defeat Proposition 209, which stated that California institutions “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Exit polls taken by the American Jewish Congress following the November 1996 referendum showed that Jewish voters opposed the initiative by a margin of 58-42, a notable contrast from the overall white vote favoring the proposition 63-37. That a majority of California Jews voted to preserve affirmative action diverges sharply from the situation 20 years earlier, in which Jews firmly opposed race-based admissions policies in favor of merit-based ones.

The legal episode which would match the intensity and societal impact of Regents v. Bakke came in the early 2000s, when a series of litigations involving the University of Michigan’s admissions policies ascended to the Supreme Court. Two simultaneous cases, Grutter v. Bollinger and Gratz v. Bollinger, made their way through district courts and finally arrived at the high court in 2002. Barbara Grutter and Jennifer Gratz were white applicants who were denied admission to the University of Michigan’s law school and undergraduate college, respectively. The petitioners alleged that the university’s admissions policies significantly disadvantaged white students in order to make room for less-qualified minority applicants. The university law school employed a holistic review in which each application would get an individual review, taking into account factors such as LSAT score, undergraduate GPAs as well as racial background. The undergraduate admissions process employed an admissions point system under which blacks, Hispanics and Native Americans would automatically be awarded 20 points out of a possible 150 by virtue of their racial background. Many in the academic world believed this court case spelled the end for affirmative action.

Several major Jewish organizations, led by the AJCommittee, submitted an amicus curiae brief supporting the University of Michigan’s race-conscious admissions policies. At this point, the AJCommittee had abandoned their previous rationale opposing racial quotas, and adopted Justice Powell’s diversity argument as justification for supporting the university. The amicus brief noted “diversity not only provides all students with a richer educational experience, but also prepares them for participation in our pluralistic democracy.” Jeffrey Sinensky, general counsel for the AJCommittee, further asserted that “disallowing the consideration of race as one factor among many in university admissions would have the effect of eliminating meaningful diversity on American campuses.”

The ADL remained closest to its original stance in Bakke. Their brief opposed racial preferences in university admissions, but did not support the petitioners, who argued that race has no place at all in a constitutional effort to maintain diversity. They took a middle ground and filed a brief on behalf of neither side, saying that race “may appropriately be considered in the admissions process,” so long as it receives no greater weight than other characteristics of applicants. “We believe in the value of diversity in higher education, as elsewhere,” said ADL national director Abe Foxman. The AJCongress did not file a brief in Gratz v. Bollinger because the organization’s members could not come to a conclusion about whether the point system constituted a quota.

The court’s majority affirmed the Powell opinion, which argued that race as one factor among many may be used by colleges in order to ensure a diverse student body. Justice Sandra Day O’Connor, in her majority opinion, wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” AJCongress’ general counsel, Marc Stern, said in a published statement “The ambiguity of the decisions, taken together, is, in sum, a good thing. Universities will be allowed some leeway to maintain diversity—but under measures and standards that will carefully cabin its worst excesses and will in the future finally put an end to such programs.”

Jewish opposition to affirmative action in the Bakke and DeFunis cases is thoroughly documented, but the support for the policy in Gratz and Grutter is less well known. This is in part due to the fact that Jewish opinions in the later cases were “more muted, as well as more diverse.” Press releases from the Jewish organizations in the early 2000s suggest that the primary reason behind the shift in position is simply that the University of Michigan did not employ an explicit racial quota. A statement by the AJCommittee reads: “The University of Michigan situation is not at all like the Bakke case, where 16 of 100 slots for entering students were set aside for minority students, and a separate admissions committee considered the applications of minority students. At the University of Michigan, an applicant’s minority status is one factor among many considered.” The few newspaper articles covering this change in opinion cited desire to minimize black-Jewish conflict and Jewish organizations’ gradual acceptance of “racial preferences as a feature of the American scene” as explanations for the shift.

In Emory University professor Eric Goldstein’s extensive book on Jews and race in America, The Price of Whiteness, Goldstein interprets the big three Jewish organizations’ support for affirmative action in the Grutter and Gratz cases as an expression of their collective white guilt:

This [the support of affirmative action] is a sharp turn in policy for Jewish organizations, because it is the first time they have accepted the notion that racism is endemic in American society, a reflection that signifies the growing uneasiness among Jews concerning their privileged status.

Although this explanation may hold some truth, it is not supported by the big three’s amicus briefs. The only mention of the word “racism” in the ADL or the AJCommittee’s amicus briefs are the organizations’ mission statements, in which they claim to be opposed to it. The word “society” is only found in conjunction with statements like “quotas have no place in our society” and “our society is becoming more diverse every day.”

Statements by Jewish organizational leaders bespeak an attitude shift from staunch opposition to comfortable acceptance of race-based affirmative action, independent of the factual or legal differences in the two cases. This change can be observed most acutely in statements made by Harvard law professor Alan Dershowitz, who served as council to the AJCommittee in crafting their amicus briefs in 1977 and in 2003, and whose positions on affirmative action and college admissions have undergone a very clear transformation in the years between Bakke and Bollinger. In Justice Powell’s Bakke decision, Harvard’s holistic admissions policies were held up as a model for other universities to follow in order to increase diversity without the use of strict racial quotas. In the Harvard Crimson, Dershowitz blasted this notion, countering that “Harvard’s admissions policies are so vague and discretionary as to defy description.” This echoed the tone of the AJCommittee’s brief he helped author which stated that admissions policies that take race into account are “factually, educationally and psychologically unsound, legally and constitutionally erroneous and profoundly damaging to the fabric of American society.”

Yet Dershowitz’s formerly vociferous censure of race-conscious affirmative action gave way to a quiet acceptance of the practice 25 years later. In the Washington Post, he admitted that “his own opposition to race-conscious admissions has dissipated because his experience teaching law in racially diverse classrooms has convinced him that “affirmative action works.” Whether or not this is true, Dershowitz goes on to explain that Jews in general are not as opposed to affirmative action as they once were because in 1977:

we feared that our hard-earned right to be admitted on the merits would be taken away. The WASP quotient would be held constant, and the Jews and African-Americans would be left to fight over the crumbs. … What happened is that Jews have become the WASPs. They are among the dominant groups on campus, in terms of numbers.

Goldstein interprets this quote in his book to mean that Dershowitz is unsettled by the reality that Jews are now “the WASPs.” However, Dershowitz’s emphasis is on the fact that many American Jews have gradually decided that admissions policies designed to boost minority enrollment do not threaten their own hard-won foothold in elite colleges and graduate schools. Stern, the general counsel at AJCongress, echoed that sentiment when he stated that “the Jewish community is less concerned about affirmative action than it was 25 years ago.” These statements show that factors having to do with Jews’ status in society and not a principled legal argument may underlie the communal shift on affirmative action.

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Dershowitz left out an important corollary to his observation that Jews have become America’s new WASP elites, namely that Asians have become the new Jews. Given their drive to succeed and stellar performance in academics they have been dubbed the new Jews since at least the mid-1980s. Dershowitz observes in his book The Vanishing American Jew that as Jews have become more accepted and less discriminated against “they have also become less driven, less creative, less obsessed with proving themselves.” He adds:

It is no longer true as it once may have been that Jews, as a people, have more drive, more fortitude than others. Even in my 30-plus years of teaching at Harvard, I have seen a significant change: Jewish students are simply not as outstanding as they once seemed to be.

Dershowitz’s remark that Jews have earned the right to become the dominant group on campus based on their merits is seemingly at odds with his earlier observation that Jews no longer perform at the high levels they once did. The contradiction expressed in Dershowitz’s statements is at the heart of a recent statistical analysis of elite college admissions by Jewish Harvard alum and former publisher of the American Conservative, Ron Unz.

In “The Myth of American Meritocracy,” Unz makes two key statistical arguments about elite university admissions. The first is that within the Ivy League, there appears to be a unstated quota of around 16 percent of class spots available to Asian applicants. The current notion that Asians are victims of discrimination in higher education has existed since at least 1989, when the U.S. Department of Education’s Office of Civil Rights found that the mathematics departments at UC Berkeley and UCLA were practicing discrimination against Asian applicants. Unz’s second argument, which prior to the article’s publication had not entered into public discourse, is that the number of Jewish students in the Ivy League is too high to be explained solely on the basis of academic merit. He concludes that Jewish students are benefiting from favorable admission policies in the Ivy League.

Part of Unz’s detailed argument is that Jewish academic achievement, as measured by the National Merit Scholarship Qualifying Test, the Intel science competition, and various other math and science competitions, has declined precipitously since the 1970s, with especially poor performance since 2000. The explanation offered is similar to Dershowitz’s:

Today’s overwhelmingly affluent Jewish students may be far less diligent in their work habits or driven in their studies than were their parents or grandparents, who lived much closer to the bracing challenges of the immigrant experience.

Concomitant to this decline in Jewish academic performance was the meteoric rise in Asian performance. Since 1993, the population of high-achieving college-age Asians nearly doubled, as has their proportion in the aforementioned metrics of academic excellence. At Caltech, the institution with the most meritocratic admissions policy, Jews make up 5.5 percent of the undergraduate student body, as compared with an Asian enrollment of 39 percent. Nevertheless, over the past 15 years, the percentage share for Asians in the entering classes at the eight Ivy League schools has dropped by 3-5 percent per school whereas total Jewish enrollment at elite universities has remained unchanged. This evidence is used to conclude that the Ivy League universities’ discretionary, flexible, holistic admissions processes—sanctioned in Bakke and upheld in Grutter—benefits Jews to the exclusion of Asians and non-Jewish whites.

Jewish applicants, who tend to be liberal, cosmopolitan, secular, and affluent, engage in extracurricular activities deemed desirable by university administrators and admissions officers who have similar cultural backgrounds. It is this unconscious bias, not explicit ethnic favoritism, that Unz claims is responsible for the unspoken admissions boost that Jews have received over the past two decades. This information provides an explanation for the hitherto mysterious tempering of opposition to race-based affirmative action on the part of the AJCommittee, ADL and AJCongress. The reason that the leaders of these organizations no longer oppose race-based affirmative action is because the holistic, variable, highly nontransparent admissions process that guarantees representation of minorities in proportion to their numbers in the general population is also responsible for the overrepresentation of Jews in the academy.

Jewish organizations opposed racial quotas in favor of a colorblind meritocracy when such policies secured Jews a greater number of spots in elite universities. The DeFunis case of 1974 and the Bakke case of 1978 held particular importance for Jews because those were years in which baby boomers were applying to medical and law schools. Asians were so insignificant that University of California at Davis included them in the special admissions program along with Chicanos, blacks and American Indians. Supporting Alan Bakke in his fight for admission to medical school in 1978 had more to do with increasing the number of Jewish spots at elite universities and professional schools than a steadfast commitment to individual rights. Jewish social scientist Nathan Glazer stated the case very plainly:

We are moving into a diploma society, where individual merit rather than family and connections and group must be the basis for advancement, recognition, achievement. The reasons have nothing directly to do with the Jews, but no matter—the Jews certainly gain from such a grand historical shift. Thus Jewish interests coincide with the new rational approaches to the distribution of rewards.

Glazer happily acknowledges that the new meritocratic reward system is good for the Jews. This passage was written in 1983, right at the very beginning of the Jewish academic decline described by Unz. By 2003, although Asian individual merit had surpassed Jewish individual merit by nearly all measures, Jewish Americans had figured out that Jewish interests now coincided with the nontransparent, quasi-meritocratic system of reward distribution, namely race-based affirmative action. Supporting the University of Michigan’s race-conscious admissions policies is in actuality supporting a system in which Jews are overrepresented. In 1978, when American Jews excelled academically and had little competition, it was in the community’s collective socioeconomic interest to oppose nonmeritocratic quotas, whereas in 2003 and beyond when Asians possess academic qualifications in spades it is Jews who benefit from quota-like admissions policies. Were affirmative action to be repealed in the near future, the main beneficiaries would be Asian-Americans.

When affirmative action again reached the Supreme Court again in 2012 (Fischer v. Texas) and 2013 (Schuette v. BAMN), Jewish communal organizations spoke with one voice, in favor of preserving affirmative action in higher education. The recent affirmative action lawsuits filed against Harvard by Asian-American advocacy organizations and the Trump administration’s decision to remove its support for affirmative action in educational institutions show that affirmative action is facing renewed challenges from multiple fronts.

The factors underlying the American Jewish “affirmative action about-face” and why more attention has not been paid to this curious change of heart have many implications for both the Jewish community and affirmative action in higher education. The Jewish community claimed that their opposition to affirmative action up until 1970s reflected their anxieties that Jewish quotas might be re-instated and threaten their hard-won socio-economic gains. By the early 2000s the Jewish community tempered its opposition to affirmative action, adopting a muted support for it. Still to this day, the mainstream Jewish community holds a muted support for affirmative action mirroring its liberal stance on other social issues such as gun control and immigration. One possibility is that factual differences between Bakke and Bollinger are enough to explain the change and that explicit racial quotas are the red line the Jewish community will not tolerate. Another possibility is that Jewish organizations are embarrassed by their former opposition to racial quotas, which is out of line with their liberal political sentiments on most other social issues.

The explanation put forward by this article is that Jews have become America’s WASPs. They back the current system of affirmative action because it protects their self-interest as a group with outsize political and social influence. As leaders in the political arena, Jews have an image to maintain as upholders of liberal values like diversity, racial equality, and affirmative action. At the same time, Jewish overrepresentation within the Ivy League can be attributed in part to the opaque admissions programs that at once benefit certain minorities like African-Americans, but hurt other such as Asians. Many find this reminiscent of the numerus clausus that barred Jews from entering these same institutions just a century ago. With racial identity politics more poignant now than at any point since the civil rights era, the Jewish community’s opinions on affirmative action will be under scrutiny.

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