Affirmative Action, the Merchant of Venice, and the Perils of Using Their Laws to Seek Justice for Yourself
- Affirmative action refers to laws and policies that help underrepresented groups access education and employment. In particular, race-based affirmative action currently protects Black and Brown applicants against discrimination in U.S. college admissions.
- Legacy admission refers to preference by schools for applicants with family members who are alumni. To put it plainly, if your parent went to some school that practices legacy admission, you are at an advantage when you apply there.
- Horizontal violence or lateral violence refers to anger at an unaccountable oppressor manifesting as misdirected aggression on your peers, who are easier targets.
Horizontal Violence
Injustice rarely fades away; it just finds a new target. It is sadly unsurprising that colleges and universities, barred by affirmative action from discriminating against Black and Brown applicants, would choose to discriminate against another minority group (instead of, say, cutting back on legacy admissions).
In response, in a bizarre case of horizontal violence, a group of Asian Americans rejected from Harvard due to alleged racial discrimination is taking a swipe at race-based affirmative action (instead of attacking, say, legacy admissions). Such is the non sequitur that constitutes the lawsuit Students for Fair Admissions v. President and Fellows of Harvard College, first filed in 2014 and now taken up by the Supreme Court.
SFFA v. Harvard’s true merit — despite its flawed aims — is bringing Harvard’s questionable admissions practices to wider public attention. Through data made available by the case, we learned that Harvard admissions officers assign four profile ratings to each applicant: academic, extracurricular, athletic, and personal; and that Asian American applicants, who on the whole scored highest in the more-or-less objective academic and extracurricular ratings, were given low personal ratings, a subjective score that purports to assess “integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit.”
Due to this backdoor for bias, unconscious or deliberate, it appears many Asian American applicants who were otherwise as or better qualified than accepted applicants of other races were denied entry. Even while ruling in favor of Harvard in 2019, Judge Allison D. Burroughs concluded “that the data demonstrates a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers, holding constant any reasonable set of observable characteristics.”
What the hell, Harvard.
Unwarranted doubts about Asian individuality and creativity are nothing new and hardly limited to Harvard: Just this month, the New York Times reported that a leading contender in Ohio’s 2022 U.S. Senate race claimed in a 2013 podcast episode that his former Asian classmates “memorized formulas” and were “very good at copying,” but that they “got lost in the weeds” when faced with “a word problem.” MIT’s former dean of admissions infamously dismissed Asian applicants with the stereotype “yet another textureless math grind,” as quoted in Daniel Golden’s 2006 book The Price of Admission. The book also quotes a former Vanderbilt administrator as baldly stating “Asians are very good students, but they don’t provide the kind of intellectual environment that Jewish students provide.”
The unfavorable comparison to Jews is curious, given SFFA v. Harvard itself harks back to Harvard’s 1920’s quota to restrict Jewish admissions. Injustice rarely fades away; it just finds a new target: Jewish, then Black, now Asian. The lawsuit also bears some similarity to a fictional case involving one of the most famous literary caricatures of a Jewish plaintiff: Shylock, the antagonist of Shakespeare’s The Merchant of Venice.
What News on the Rialto?
Writing late 16th century England, in which the Edict of Expulsion against Jews had been in effect since 1290, William Shakespeare probably intended to write a straightforward comedy about Christian friends fending off a stock Jewish villain. Since the 19th century, however, The Merchant of Venice has been increasingly interpreted as the tale of a proud and wealthy man who is persistently abused, justified in his anger, and ultimately undone by a prejudiced system that pounces on his legal imprecision.
In the play, Shylock, a Jewish moneylender, lends 3,000 ducats to a broke Venetian nobleman, whose friend, the Christian merchant Antonio, agrees to be the loan’s guarantor. Shylock is initially incredulous at Antonio’s gall, as the antisemitic merchant has deliberately harmed Shylock’s business, called him slurs, kicked him, and as lately as “Wednesday last,” spat on him. Antonio does not deny it:
SHYLOCK
[…]
Shall I bend low and in a bondman’s key,
With bated breath and whispering humbleness, Say this;
‘Fair sir, you spit on me on Wednesday last;
You spurn’d me such a day; another time
You call’d me dog; and for these courtesies
I’ll lend you thus much moneys’?ANTONIO
I am as like to call thee so again,
To spit on thee again, to spurn thee too.
If thou wilt lend this money, lend it not
As to thy friends; for when did friendship take
A breed for barren metal of his friend?
But lend it rather to thine enemy,
Who, if he break, thou mayst with better face
Exact the penalty.
Shylock eventually agrees to the loan, on condition that if Antonio fails to pay it back, the lender may take a pound of the merchant’s flesh. What might have been at most pointed trolling takes a turn when Shylock’s daughter elopes with a man who happens to be Antonio’s friend. Shylock, betrayed and enraged, becomes determined to claim the pound of flesh after Antonio defaults on the loan.
In Shakespearean Venice, death is a fair if somewhat unusual price to pay for willingly entering into the wrong kind of bond. This is for the state’s own benefit: Because “the trade and profit of the city / Consisteth of all nations,” it must honor all freely entered contracts, lest Venice’s international trade partners lose faith. Venice’s laws, tied to its financial interests, cannot deny Shylock’s claim to Antonio’s flesh and thus his life.
The authorities of Venice therefore plead with Shylock to voluntarily drop his suit, “But none can drive him from the envious plea / Of forfeiture, of justice and his bond.” Shylock is equally unmoved when “a young doctor of Rome” famously insists that “The quality of mercy is not strain’d, / It droppeth as the gentle rain from heaven / Upon the place beneath: it is twice blest; / It blesseth him that gives and him that takes.” It’s a beautiful plea, although it has the whiff of that one clueless friend who, when called out on a racist, sexist, or ableist comment, insists that is us who need to show more grace.
For a brief moment, it seems Shylock successfully used the state’s own laws against its will, but then he is dramatically stopped: The “doctor” declares that Shylock may not “shed / One drop of Christian blood” nor cut “less nor more / But just a pound of flesh.” Otherwise, he will be put to death, and his wealth confiscated.
Given an excuse to deny him, Venice eagerly takes its revenge. Much as Asian Americans today are regarded as perpetual foreigners in the eyes of the bigoted, Shylock is deemed “an alien” who sought the life of a “citizen” of Venice, to be punished accordingly. His life is spared only on Antonio’s condition that he, Shylock, gives up his Jewish faith.
“For, as thou urgest justice, be assured / Thou shalt have justice, more than thou desirest,” Shylock is told. Can you expect justice from a society and judicial system that just wasn’t set up to serve you? Trying to use their own rules to get back at them has its limits. You didn’t follow this rule I just made up, they will say; this rule that we always had doesn’t apply to you. They will sooner make a mockery of their own rules than let the likes of you gain from it. They will play your suffering for laughs and call the whole affair a comedy.
This is not just some literary fable.
Shall Not Be Infringed
The topic of guns in America is full of ironies. For example, the U.S. does not offer nor require systematic gun training despite the constitutional right to bear arms. If gun possession is a right, shouldn’t training also be? Meanwhile, Hollywood liberals who support gun regulation routinely glamorize firearms on screen. Apparently the Second Amendment extends to a galaxy far, far away where Queen Amidala is shooting down aliens.
Ironic still is the modern popularization of the individual-rights interpretation of the Second Amendment, whose text reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As historian Jill Lapore (incidentally, a Harvard professor) wrote in The New Yorker, “no amendment received less attention in the courts in the two centuries following the adoption of the Bill of Rights than the Second, except the Third (which dealt with billeting soldiers in private homes). It used to be known as the ‘lost amendment,’ because hardly anyone ever wrote about it.”
That changed in the late 1960’s. In response to police shootings of unarmed Black people, it was Black nationalists like Malcolm X, Bobby Seale, and Huey Newton who pressed that the Second Amendment permitted individuals to arm themselves in self-defense. As Lapore noted,
In a 1964 speech, Malcolm X said, “Article number two of the constitutional amendments provides you and me the right to own a rifle or a shotgun.” Establishing a constitutional right to carry a gun for the purpose of self-defense was part of the mission of the Black Panther Party for Self-Defense, which was founded in 1966. “Black People can develop Self-Defense Power by arming themselves from house to house, block to block, community to community throughout the nation,” Huey Newton said.
The Black Panther Party in particular practiced “copwatching,” aimed to discourage police brutality by observing officers while openly carrying firearms. In May 1967, as the California State Legislature debated methods to shut down Panther activities, “an armed delegation” of 30 Black Panthers gained entry into the State Capitol carrying loaded firearms, claiming that it was within their constitutional rights to do so.
As with Shylock, it was a reaction against prejudice and discrimination. As with Shylock, they sought to use the law to their advantage. As with Shylock, it backfired.
Alarmed by Black gun possession, as well as a spate of assassinations and protests in the 1960’s, state and federal governments moved swiftly to regulate guns. The California State Legislature passed the Mulford Act, dubbed the “Panther Bill” by the media, which prohibited carrying a loaded weapon on public property without a governmental license. The federal Gun Control Act of 1968 “banned mail-order sales, restricted the purchase of guns by certain high-risk people (e.g., those with criminal records), and prohibited the importation of military-surplus firearms” and “was intended to fight crime, control riots, and solve what was called, in the age of the Moynihan report, the ‘Negro problem.’”
Then the tune changed, just as Shakespearean Venice went from dissuading Shylock from his suit to using it against him. Ronald Reagan, who had flatly stated as California Governor in 1967 that “there is absolutely no reason why out on the street today a civilian should be carrying a loaded weapon,” became the first presidential candidate endorsed by the National Rifle Association. As backlash against gun control, rural gun owners, many of them White and conservative, started pushing for more gun rights. While the courts were initially slow to recognize the right of an individual to keep and bear arms, the Supreme Court’s landmark 2008 District of Columbia v. Heller decision eventually ruled it a constitutional right.
Contrary to Black nationalists’ wishes that Black gun possession would deter police brutality, unarmed Black people are still being shot by the police, whose frequent justification is self-defense: As far as they knew, the victim could have had a gun. When any random person can have a gun, any random person is fair game. “Thou shalt have justice, more than thou desirest” indeed.
Take Affirmative Action
What did Shylock expect to gain by pursuing a pound of flesh? What did Black nationalists expect to gain by pursuing gun ownership? What do the plaintiffs of SFFA v. Harvard expect to gain by pursuing the end of affirmative action?
SFFA v. Harvard in particular is a brainchild of Edward Blum, a financial adviser with a history of legally challenging various race-based protections. It may seem for the moment Blum’s aims coincide with yours, just as Venetian laws seemed to align with Shylock’s and the Second Amendment with the Black Panthers’. It is an illusion. Imprecise and indirect intervention will eventually turn around to bite you. If you’re angry at antisemitism, seek measures against antisemitism; don’t ask for someone’s flesh. If you’re suffering from police brutality, seek measures against police brutality; don’t ask for guns. If you’re being discriminated against, seek measures against discrimination; don’t ask for other people’s protection against discrimination to be ended. Be precise. Be direct.
Asian Americans are superficially different from Jewish Venetians and Black Americans in that they are the so-called “model minority,” that is, the minority group that, as the argument goes, abides by the rules of mainstream society and therefore achieves educational, professional, and economic success. Mainstream society holds the model minority up as evidence that socioeconomic disadvantages plaguing other minority groups are not due to systematic discrimination: If you only worked hard enough, you’d do as well as the Asians!
This is glib and unfair especially to Black Americans, who suffered generations of slavery and racism, under which hard work rarely led to commensurate success, and success often led to punishment. It is also damaging to Asian Americans, whose marginalization is not taken seriously because of their perceived success. For example, schools like Harvard see fit to all but openly limit Asian enrollment.
While Harvard still denies any racial discrimination in their admissions, the district court decision notes that the university’s “personal rating criteria, perhaps in response to this lawsuit, were overhauled for the class of 2023.” Perhaps what we need is not the end of race-based affirmative action but more visibility into colleges and universities’ admissions processes. Since no opinion piece touching on affirmative action can resist offering thoughts for how to untangle it, here are mine:
- Instead of ending affirmative action, require schools to regularly release their admissions data for scrutiny and analysis.
- If any quota is to be applied, it should be applied openly. Owning up would engender open and honest discourse about race and admissions: “Is an admissions process that disadvantages a minority group benign, or even desirable, if that minority group is demographically overrepresented in higher education? Should colleges pursue their interest in a diverse class by limiting admissions of a minority group whose numbers may otherwise overwhelm the class?” asked Jeannie Suk Gersen (incidentally, a Harvard law professor) in The New Yorker. As she pointed out, schools currently “cannot admit to efforts at racial balancing or anything that sounds remotely like quotas,” which are prohibited by the 1978 Supreme Court case Regents of the University of California v. Bakke.
- Implementing affirmative action should not cut into Asian admissions but into legacy admissions, which are no less absurd than hereditary absolute monarchy. Society gains if schools invest in the brilliant kid from humble origins who can become successful and donate 20 years later, instead of shortsightedly admitting the unremarkable child of someone who donates now. We must explore legal and societal incentives for schools to pursue the former course.
- If we were to aim for moral clarity, affirmative action would be openly applied and justified by reparations for slavery, although that may prove annoying for Black students if they are constantly assumed to be affirmative action admissions.
- Arguments to replace race-based affirmative action with a class-based alternative sound compelling enough to be explored eventually, although studies suggest we are not yet ready for such a change: They apparently indicate we have not progressed much since California’s Proposition 209 in 1996, after which Black student presence in the University of California system fell off a cliff.
- While ending race-based affirmative action now appears premature, growing Black and Brown presence in higher education now, combined with other programs, may render race-based affirmative action unnecessary down the line.
- For any willing learner, there should be more avenues for advanced education and networking than just colleges and universities. We must explore more effective forms of online learning.
- Again: Be precise and direct in what you seek.
It’s a perilous business navigating a society that does not value you. The letter of the law may be on your side, but not the spirit. Their laws tend not to forgive your missteps, and legal protections for them may shape-shift into a cudgel on you. The plaintiffs of SFFA v. Harvard may not gain at all from recklessly ending race-based affirmative action, and it will likely hurt other minorities.
We should look to Shylock’s modern brethren: “It was as Jews gained more political power and became more likely to be donors that élite schools’ discrimination against them waned,” noted Suk Gersen. Instead of trying to outsmart them with their own laws, perhaps it’s a better bet to progressively make them unable to ignore your worth, all the while showing kindness and support for other minorities who, like you, are not currently valued by society.
