Predictably, I have been labeled a “bigot” for supporting Donald Trump’s executive order ending affirmative action in federal government and for federal contractors. It’s not as if my opposition to affirmative action is unknown. I turned against affirmative action fifteen years ago. My change of mind occurred in stages in the context of teaching upper-division college courses. I want to tell that story here. I provided a short version of the story in June 2021 (you can read it here) and elaborated the argument a few days later in Equity and Social Justice: Rationalizing Unjust Enrichment. I will expand upon the circumstances of transformation here (my ability to change my mind is explained in the essay I published yesterday) and then pivot to the problem of affirmative action, which, as I will show, is a species of racism, and the importance of Trump’s actions in ending it.
The first moment of my transformation on this issue came in the spring of 2010. I had assigned, among other books, Richard Delgado and Jean Stefancic’s Critical Race Theory: An Introduction in Law and Society (the forward penned by Angela Davis). When I went through the assigned texts on the first day of class, I told my students that we would not be do the classroom exercises suggested by the book. I said this because I wanted them to critically evaluate the arguments at hand—arguments I largely agreed with at the time—not engage in activities that would require a captive audience to participate in the transformation of consciousness such activities sought. I am a lifelong free speech advocate, and I understood that having students engage in ideological exercises constituted compelled speech. As we worked through those ideas during lecture and discussion, I came to regret having assigned the book for the same reason I would later regret having assigned another piece of ideological work, namely Michelle Alexander’s The New Jim Crow in my course Criminal Justice Process. Why? The problem of ideology.
It was either during the during the summers of 2010-2011, or the spring of 2012, perhaps even before that (that earlier essay seems to imply that), in the context of my Foundations of Social Research class, while lecturing on the fallacy of misplaced concreteness and the related problem of reification, that I realized why Delgado and Stefancic’s book had troubled me so: critical race theory is built around those fallacies. To elaborate, the fallacy of misplaced concreteness refers to the error of treating an abstract concept or theoretical model as if it were a concrete, fully accurate representation of reality. Reification is the act of treating abstract concepts, such as relationships or social constructs, as though they are tangible and independently existing entities. While both involve a conflation of the abstract and the concrete, misplaced concreteness emphasizes the mistake of overvaluing simplifications, often in the guise of logical reasoning while leveraging group averages, whereas reification critiques the sociological tendency to treat abstractions, in this case “racial categories” as if they have agency or physical existence. Essentially, reification can be seen as a specific form of misplaced concreteness within broader contexts.
The rescission of affirmative action by actions taken by Donald Trump during the first days of his second term as president aligns with my longstanding concerns about the ideological underpinnings of racial preferences that reflection upon those fallacies had raised. It is one thing for an individual to question whether his race affected an opportunity, either acceptance at a university or employment or promotion at a private or public organization. But affirmative action asserts abstract racial categories—simplifications of complex, multifaceted human identities—as the basis for decision-making in education and employment. Thus affirmative action necessarily treats individuals as personifications of abstract and often arbitrary demographic groups (ever looked at a nineteenth century census form?), embodying historical narratives and statistical averages instead of recognizing the unique experiences, merits, talents, and potentials manifest in the flesh-and-blood person.
Critical race theory, as outlined in Delgado and Stefancic’s work (their primer accurately captures the main arguments), exemplifies this problem. Moreover, the theory has played a central role in rationalizing affirmation action (as well as reparations), by supposing the deterministic role of race in shaping outcomes and experiences, effectively reifying racial categories as concrete, self-contained entities with intrinsic agency—advocating altering the opportunity structure on this basis. A reader might take issue with my characterization of this matter. Fine. But what weight can academic disagreement carry in the law? Anybody who studies the disciplines of history and sociology must admit the myriad accounts one finds there are interpretations and theories built upon or positing essentially contested concepts.
We see these fallacies in the notion of “white privilege,” which refers to the alleged unearned advantages or benefits those individuals identified as white enjoy in societies supposedly structured around racial hierarchies. Those alleged advantages and benefits are said to manifest in systemic ways, such as greater access to education, employment, and housing, as well as in everyday experiences, such as being less likely to face racial profiling by the police or discrimination in businesses. Here, prima facie evidence of disparity, ie the mere fact of group differences, becomes proof of systemic racism. Even if there were empirical evidence supporting these claims at the abstract structural level (I do not a priori rule it out), it is not true that every individual enjoys these privileges.
Moreover, in the legal context, privilege refers to a specific right or immunity granted to a person or group that protects them from certain legal obligations. Such privileges are rooted in statutes, common law, or constitutional protections and are designed to safeguard important relationships or rights. The fact is that laws and policies privileging whites were abolished in 1964, with the Civil Rights Act. There have been no racial privileges for sixty years—at least not for whites and those deemed white-adjacent (shorthand for those groups that on average have accomplished more, command higher incomes, live in better houses, etc.) CRT says difference is because of white supremacy, but that is a theory. (Some say it more crudely; Ibram X Kendi says either group inequality is explained by racism or the racist notion that they are not.) There are other theories, such as cultural traditions that promote academic excellence and hard work. At its core, affirmative action is justified by selective affirmation of particular historical interpretations and sociological theories. It is not the role of government to force us to operate according to particular interpretations and theories by historians and sociologists.
As such, affirmative action reestablishes in the wake of the 1964 Civil Rights Act a lawful system of racial discrimination by appealing to the argument that societal systems and institutions have historically been designed to favor white individuals, often at the expense of marginalized racial groups, and therefore government action is required to repair alleged harms. The cover is that white privilege is not about assigning personal blame or oppressing whites and white-adjacents but about understanding structural inequalities and how they perpetuate disparities across racial lines. But of course, blame must be assigned, after all there is an oppressor and the oppressed in this model, and to raise this supposed dynamic to the level of justice, the legal system must be put in the employ of primitive notions of collective and intergenerational guilt, primitive notions out of step with the modern and enlightened system of justice based on individualism. It is in the individual that rights reside, and equality demands that each individual, except in cases where there are intrinsic differences between groups (such as the case of gender, where equity is required), is equally entitled to those rights.
To put the matter bluntly, affirmative action is a system of discrimination based on race. This is why the US Supreme Court significantly restricted the use of affirmative action in college admissions in its June 2023 decision in Students for Fair Admissions v. Harvard (see Ending Patronage and Co-optation: The Death of Affirmative Action is a Start for details and analysis of the policies hegemonic function). The Court ruled that race-conscious admissions policies at these institutions violated the Equal Protection Clause of the Fourteenth Amendment. The decision effectively ended the longstanding practice of affirmative action as it had been used in higher education, emphasizing that admissions decisions must focus on individual merits and achievements rather than generalized considerations of race.
Trump’s rescission of Lyndon Johnson’s 1965 executive order 11246 establishing affirmative action follows the line of progress on civil rights law and policy the Court’s decision advanced. If social justice is to have any real meaning, it is found here. The practice of affirmative action undermines the dignity and individuality of persons, reducing them to vehicles of abstract constructs in a program to right the wrongs asserted by a particular historical interpretation and sociological theory. By ending affirmative action, policymakers have an opportunity to refocus on merit-based frameworks that evaluate individuals on their actual achievements and capacities, rather than perpetuating the flawed logic of racial essentialism inherent in reified group identities. There’s feedback loop: the interpretations and theories at work here lose their purpose. After all, one’s skin color is not an achievement, nor are we to prejudge the capacities of individuals on that basis. There’s a word for ideologies that do that, the word is racism.
freedom and reason 