Why the Supreme Court’s decision on affirmative action matters to Jews
Supporters of affirmative action protest near the U.S. Supreme Court Building. Photo by Getty Images
By Benjamin Ivry June 30, 2023
The Supreme Court decision issued June 29 holding that affirmative action in college admissions is unconstitutional may cause more tsuris than nachas for Jewish students and their proud parents.
The National Council of Jewish Women declared that it was “alarmed” by the court’s decision, warning that it would impact “racial equality in higher education” in a way that would affect “all students regardless of their race.”
The Union for Reform Judaism (URJ) concurred, posting on its website a reminder that Jewish tradition values “policies that will create justice for all people.” Quoting the Babylonian Talmud, the URJ observed that in a crowd, “just as each person’s face is different from another, so is each person’s mind different from any other mind.”
Yet in America’s divided political landscape, even the Babylonian Talmud may be an object of discord. Jeremy Rozansky, an attorney and former policy researcher for Marco Rubio’s presidential campaign, asserted in 2012 that affirmative action was “bad for Jews” and the quote from the Babylonian Talmud was really about “differences within the Jewish tribe, not as a universal matter.”
According to Rozansky, the Talmudic authorities only referred to “diversity of mind and face within one people; they are not praising cross-cultural exchange.”
This insular interpretation was outstripped by Ron Unz, cited by attorneys for the plaintiffs in the Supreme Court case. As The Guardian pointed out, the legal complaint heard in the Supreme Court “draws heavily” from a 2012 article by Unz, who “publishes antisemitic, anti-LGBTQ+ and neo-Nazi screeds.”
A publisher and entrepreneur, Unz, of Ukrainian Jewish origin, grew up in a Yiddish-speaking household in North Hollywood. The Unz Review, his website, has been criticized by the Anti-Defamation League for hosting racist and antisemitic content.
In 2018 the ADL charged Unz with embracing “hardcore antisemitism,” Holocaust denial, and endorsing the “claim that Jews consume the blood of non-Jews.” The headline of one Unz Review article claimed that the trial of the former police officer who murdered George Floyd proved “That in Jewish-Dominated U.S., Whites Are Regarded as DOGS Relative to Blacks Who Are Regarded as FELLOW HUMANS of Jews and Homos.”
His 2012 article, rife with erroneous statistics, argues that Jewish students are getting stupider but suspiciously continue to be admitted to Harvard, while Asian Americans are unfairly excluded.
The defense countered that this spring, almost 30% of successful applicants to Harvard’s class of 2027 were Asian Americans, the highest-ever percentage.
Affirmative action is a requirement, more than an option, for Jews, as Rabbi Abner Weiss of the Riverdale Jewish Center noted in 1978. Weiss stressed that the “notion of compensating an individual for the effects of past deprivation” is “part of the Jewish religious tradition” as a “binding legal obligation.”
Admitting that the limit of self-sacrifice was a halakhic issue, Weiss cited a debate between Rabbi Akiva and a colleague. The discussion was about two desert travelers with an inadequate water supply. One’s own individual survival took precedence, rather than sharing and having both travelers die from thirst.
Despite its compulsory nature, affirmative action is not a precision science, leaving it prey to irrational exaggeration. Jewish Choices, Jewish Voices, a JPS volume on ethics, explains that some “American Jewish organizations opposed affirmative action for Blacks, fearful that it would cut into Jewish socioeconomic gains.”
This tension, as the Americanist Dennis Deslippe observed, existed even a half-century ago, when the National Jewish Community Relations Advisory Council reported on “considerable anxiety” among Jews about undocumented alleged difficulty in gaining college admission, faculty jobs, or government employment.
Some Jews even benefited from affirmative action in a quasi-serendipitous way, although not due to their Judaism. Joy Ladin, the first openly transgender professor at an Orthodox Jewish institution, detailed in a memoir that before transitioning, she was accepted to Sarah Lawrence, originally a women’s college that became coeducational. “Ironically,” Ladin’s original male gender gave her an “affirmative-action edge in terms of admissions and financial aid.”
An open-minded willingness to see how society can advance and benefit all might be needed. The alternative, widely seen in the neoconservative press, is to collapse in fear and loathing through a distorted, fraught obsession with the past.
Instead, Jews approaching affirmative action might follow the forward-looking example of Morris B. Abram, the youngest-ever person chosen to head the American Jewish Committee and a leading international advocate for the state of Israel, who fought for civil rights for decades.
According to his biographer David Lowe, in 1975 when Abram accepted an award from the American Jewish Committee, he offered ground rules for social advancement of Jews and other minorities:
“Let there be careful reexamination of all traditions in respect of entrance and qualification to opportunity; let there be affirmative efforts to move the disadvantaged forward, with ‘disadvantaged’ defined without regard to race, color, creed, or national origin.’”
Otherwise, as the law professor Frank Wu noted in an article published in 2019, one year before he became president of Queens College, the Supreme Court case contained a number of ironies.
A chief one was that the plaintiffs, and even a couple of Supreme Court justices, seemed intent on drawing misleading parallels between discriminatory quotas used to keep Jews out of Harvard a century ago, and affirmative action, intended to give students from a wide range of backgrounds opportunity.
Perhaps unsurprisingly, no Asian American individual could be found to serve as plaintiff in the case against Harvard that supposedly postulates anti-Asian American discrimination.
Wu concluded: “The case is, at the end, not about Asian Americans. It is, instead, an attempt to use Asian Americans as a means to an end.”
Indeed, Jews and Asians alike rejected a common right-wing journalistic shorthand that described Asian Americans as “the new Jews,” a formulation that crassly erases individualities of both minorities.
The sociologist Jennifer Lee, who teaches at Columbia University, concurred, writing that in fact, nearly three-quarters of Asian Americans support affirmative action, while fewer than 10% of Asian Americans knew of anyone who missed out on college admission because of affirmative action. So the narrative depicting absent Asians as victims and opponents of the policy was a fiction cooked up by the plaintiffs for their own purposes.
Another sociologist, Jerome Karabel, explained that unlike quotas, which “substantially reduced Jewish enrollments,” affirmative action increased enrollments for Asian Americans, African Americans and Latinos. And unlike a century ago, when the Jewish community more or less unanimously opposed Harvard’s policy, today Asian Americans disagree about the lawsuit and affirmative action, with 156 Asian American organizations signing a brief to defend Harvard’s policies.
Other conclusions may be drawn from the dissent by Justice Sonia Sotomayor, mentioning the Supreme Court’s “impotence” when confronting an America seeking equality. Or the even more stinging rebuke in another dissent, by Justice Ketanji Brown Jackson, alluding to the “let-them-eat-cake obliviousness” of Jackson’s conservative colleagues.
The fate of Marie Antoinette, to whom the original quote about fressing cake was long attributed, should strike a chill in self-seeking, manipulative politicos who misuse Jews and Asian Americans to spread social disunity.
I hope you appreciated this article. Before you go, I’d like to ask you to please support the Forward’s award-winning journalism this Passover.
In this age of misinformation, our work is needed like never before. We report on the news that matters most to American Jews, driven by truth, not ideology.
At a time when newsrooms are closing or cutting back, the Forward has removed its paywall. That means for the first time in our 126-year history, Forward journalism is free to everyone, everywhere. With an ongoing war, rising antisemitism, and a flood of disinformation that may affect the upcoming election, we believe that free and open access to Jewish journalism is imperative.
Readers like you make it all possible. Right now, we’re in the middle of our Passover Pledge Drive and we still need 300 people to step up and make a gift to sustain our trustworthy, independent journalism.
Make a gift of any size and become a Forward member today. You’ll support our mission to tell the American Jewish story fully and fairly.
— Rachel Fishman Feddersen, Publisher and CEO
Join our mission to tell the Jewish story fully and fairly.
Only 300 more gifts needed by April 30
