This past week, the topic of the Supreme Court decision on affirmative action came up among friends in a correspondence group. One writer friend in the group asked a couple of us who had differing opinions to give our thoughts on the topic, not as a legal analysis of SFFA v Harvard but rather to comment on the sharp cultural shift it represents and the road forward. 

Normally our discussions are off the record (and are a lot of fun because of it!), but I had decided that I would run only my response as an essay here. When I let my correspondent, author James Hime, know this, he graciously volunteered to allow me to publish his as well so as to give readers both perspectives. 

Rather than comment further on the essays, here are both in their nearly original forms, with only some light edits.  What I hope people will take from this is the sense that we can actually have these discussions and debate, and that we probably are closer to each other than we think even when we disagree. And in the process of debate, we come even closer to real understanding. 

James Hime, author of Three Thousand Bridges and The Night of the Dance

Good morning from sultry San Antonio.

To quote a famous southern writer, Thomas Wolfe, we are the sum of all the moments of our lives. To that I would add the moments before our lives, because they belong in the equation.

I had at least five great-grandfathers who fought in the Civil War, and among the three who fought for the Confederacy was Jacob Johnson, who saw action with the 2nd Kentucky Mounted Rifles of which his uncle Thomas was the regimental commander. They fought under Generals Humphrey Marshall and John Hunt Morgan. At some point in late 1862/early 1863, Jacob was taken prisoner, then released or exchanged later in 1863. While held as a POW he and five other soldiers wrote a letter of complaint to Gen. Marshall about their treatment in Union hands, and among their bill of particulars was the indignity of being the prisoners of black guards.

After the war, Jacob moved to Missouri where he had a son, James, who became the surrogate father to my father Paul, when the latter’s father abandoned the family during the Depression. It was James Johnson for whom I was named.

The influences of Jacob on James, and James on his grandson Paul, shaped both my father and me. That said, my father was a middle manager in an international chemical company and I came of age during the 60s in a household that was getting to grips with the civil rights movement and a dawning sense of the decades of injustice to which black Americans had been subjected since Reconstruction. I came into a world that was overtly racist but over time began to work to overcome that past.

Still and all, this was also the dawn of the age of affirmative action and, as the product of a middle class upbringing, whose path through the life was uncertain at best, I took a modicum of intellectual, not personal, umbrage at the notion that the sins of my ancestors should be offset by tipping the scales against my own fortunes in favor of others who may or may not have suffered setbacks as a result of historic wrongs.

I had the grades and the LSATs to go to an Ivy League law school, but what I lacked was the money and the imagination required to visualize myself living north of the Mason-Dixon Line. I enrolled at UT Law after graduation with an economics degree from the undergraduate school in Austin, and this I did in May of 1974, bound and determined to graduate in 27 months (which you could do back then). The only person of color I remember from law school I probably remember because he was famous from his day job – Alan Page, a defensive lineman for the Minnesota Vikings attended summer school there on his way to a post-NFL career as a state Supreme Court judge, if memory serves.

After graduation, I joined Baker Botts in Houston – we had one black lawyer then, a corporate lawyer named Rufus Cormier who also had had a celebrated career as a middle linebacker for the SMU Mustangs (he is said to have tackled OU running back Steve Owens seven times behind the line of scrimmage in the Bluebonnet Bowl during the year Owens won the Heisman Award).

I met Rufus for the first time – continuing the football theme – during a weekend game of touch football organized among the Baker Botts associates less than a month after my arrival. I showed up wearing a jersey emblazoned with the letters of my college fraternity, Kappa Alpha, which was well known for its history of having been founded at Washington & Lee University and celebrating the heritage of the “Lost Cause,” through its annual “Old South” ball, where we showed up wearing Confederate army uniforms, among other events.

Rufus, who about was twice my size, took one look at me in that jersey, lined up against me across the line of scrimmage and asked me one question:

“Were you a KA?”

I allowed I was.

He spent the next 45 minutes knocking me on my ass.

After that, we became fast friends and colleagues. He and I once went to recruit on campus together at Texas Southern University’s School of Law, which was established in the Jim Crow era for blacks who were denied admission to UT Law, and in the car on the way back to the office, I asked Rufus what he thought of the TSU law school.

Rufus, who went to Harvard, said, “They ought to shut it down.”

Between the fact that affirmative action (or, as we thought of it in my boyhood home, “reverse discrimination”) never held me back at all in my career, and the increased appreciation I gained for the advantages diversity brought to the workplace, I switched sides on the issue years ago, and became a supporter of both affirmative action and the steps taken both by Baker Botts and by every other employer I’ve ever worked for to promote diversity, equity and inclusion over my almost fifty years in law and business. As a policy matter, I still support the concept.

I haven’t read the recent Supreme Court case, so can’t speak to its legal reasoning. Having said that, I do think the result is disappointing.

But as a political matter, I would counsel the Dems and progressives in general to drop it and move on. If they’re ever going to be able to speak to that Third Island in a way that is all empathetic to the world as Third Islanders see it, they need to find a way to move past identity politics and simply look for a more inclusive way to think about social justice.

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After James offered such a thoughtful essay, I put my own thoughts together on the topic.

Jim wrote movingly about his ancestry and home culture. My experience is quite a bit different, and it certainly may play a role in how I see affirmative action and the SFFA verdict. Both sides of my family were immigrants who came to the US in the post-Civil War era. My father’s great-grandfathers came from Ireland; my great-grandparents on my mother’s side came from Italy and eastern Europe, not far from where a war is being fought now. They first came to the Northeast and then even eventually came West to California. All of them were assimilators, anxious to dump their ethnic identities for an American identity.

As for me, I was born, raised, and lived in California in my early adult years. I then moved to Minnesota for the next 23 years before coming to Texas in 2021. We did not have a Jim Crow regime/legacy in the background in my formative years, and the ethnic mix was more diverse. Other forms of discrimination existed, especially in housing, but it was more subtle without the government-imposed apartheid of Jim Crow. I don’t have the same experience or context that Jim has, and even living in Texas for the last couple of years doesn’t give me the personal insight that Jim has. However, it’s worth noting that much of the country probably has experiences and context similar to mine, and that matters in politics.

I haven’t had too many brushes with affirmative action in my own life, but I have had *some*. It didn’t come up in an academic context at all, mainly because I was an underachieving student (a procrastinator) who couldn’t compete for the in-demand colleges in the first place. I went to Cal State Fullerton, where admission was easy and affirmative action largely unnecessary. I nominally majored in communications, but primarily studied billiards in the student hall and methods of skipping classes, until I was invited to consider other life choices in my third year on campus.

Not too long after that, I went to work in the defense industry as a technical writer/editor on an open-ended contract with Hughes Aircraft. It was my first real career job, and I loved it. A couple of years into it, Hughes decided to create a job for me based on a project I ran for them, and I was about to be hired when I got a call from the department VP to come see him. That was usually not good news. He told me that although he’d wanted to hire me, the company would not allow him to do so. Their division had recently been sued over employment practices, and the opening they created for me had been assigned an EEO priority tag.

“What does that mean?” I asked.

“It means they want me to hire a black woman,” he told me.

“Uh — let me work on that,” I replied, and he laughed.

The VP closed the req instead of hiring anyone, since the point was to make me a regular employee, not to add to staff. Because my father and his brothers worked in aerospace, I knew that working at these contractors was inherently political as well as Political, so this didn’t surprise me. (I had also heard about the lawsuit and had predicted that it might derail my job.) I was aware that these issues come up, and while it bothered me to lose the opportunity after working so hard to convince them to hire me, I didn’t really have any ill will for anyone, not even the EEO policies, which I thought were reasonable. I did think this outcome was unjust, but on the scales of injustice, more of an infraction than a felony. I lost my contract about a year later when Hughes went through a horrendous downsizing that would have cut the job they created for me anyway.

My other brushes with affirmative action policies came as a hiring manager for 15-20 years in other private sector firms. I didn’t find it terribly onerous, and I wanted a diverse workforce for customer-facing positions for our own benefit anyway. To the extent that it existed as a concern, it was about how ambiguous its terms are, and how capricious and outcome-based its metrics were in practice. There is no way to comply with EEO standards without having a quasi-quota system, in my experience, and that was clearly how it was measured internally at the firms for which I worked. If at any time we got challenged on a hire or a non-hire, the only defense was to bean-count the race/sex of employees and applicants and argue that we were diverse enough to avoid a penalty.

This is where I really began questioning the long-term implications of affirmative action, both on practical and philosophical grounds. Affirmative action in theory sounds laudable, but in practice it fetishizes immutable characteristics and deepens divisions rather than healing them. It creates perverse incentive structures that turn ancestry into commodities for personal benefit, and in many cases unearned benefit. (Need I mention a certain Senator from Massachusetts?) The purported motive for this program was to extend preferences over a time-limited period to allow the generations impacted by Jim Crow to catch up, which was a noble thought at the time, but these programs have been in place for 60 years and keep expanding to all sorts of other populations that had no Jim Crow damage to ameliorate. Every signal coming from Washington and Academia made it clear that this would be a perpetual approach unless stopped.

As John Roberts wrote in 2007 and again last month, the only way to stop discriminating on race is to stop discriminating on race. And the only way to read the 14th Amendment is as an explicit bar on such programs, especially involving governments.

Finally, I look back to my own immigrant ancestors in terms of identity. They did not want to be known as Italians, Jews, and Irishmen. They came here to be Americans and to work hard for their opportunities on an equal basis with everyone else. We may fall short on that at times, but we should not institutionalize those shortcomings in perpetual obsessions over ethnic origins. We should strive to be not Italian-Americans or Irish-Americans, but just Americans. If we want unity and brotherhood, we have to start removing the obstacles to those ends rather than dig trenches.