Sunday, November 25, 2018

Affirmative action and racial tribalism

Andrew Koppelman

Last week, at the Federalist Society Lawyers Convention in Washington DC, I was on a panel about Students for Fair Admission v. Harvard, in which it is alleged that Harvard has been discriminating against Asian-Americans.  Here are my remarks:

The affirmative action controversy is tediously familiar.  It’s a ubiquitous part of American life.  (I’m a beneficiary of affirmative action myself, since I’m the token liberal on this panel.)  For many years, American conservatives have proposed to interpret all civil rights laws, including Title VI of the Civil Rights Act of 1964, to prohibit it.

It’s a commonplace of semantics that the exact same action can have different meanings in different contexts.  Students for Fair Admission v. Harvard presents itself as a blow against racial tribalism.  In context, though, this is likely to make that tribalism worse.

I begin by wishing a plague on both your houses – the opponents of affirmative action, but also its defenders.  Start with the opponents.

When Chief Justice Roberts writes that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he claims that the essence of racism is classification.  Roberts implies, as Alan Freeman put it decades ago, "that Black Americans can be without jobs, have their children in all-black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law."  To this one might add mass incarceration, with its devastating effect on families and communities – something that conservatives, who care about intermediate associations and the values of local communities, ought to be more concerned about.  On Roberts’s account, if black people think that these disadvantages stamp them with a badge of inferiority, that is solely because they choose to put that construction upon it.

Aggregate racial effects matter.  A large class of Americans remains disadvantaged because their ancestors were slaves.  To that extent, we still haven’t defeated the Confederacy.  Opponents of affirmative action commonly say that we can achieve a comparable level of racial diversity without using racial classifications.  But note that they concede that it is ok to say that.  Evidently they’re not indifferent to aggregates either.

But one can say all this without defending affirmative action, which doesn’t remedy the worst injuries of racism. It benefits the most privileged minority applicants.  It helped create a large black middle class, which is a great accomplishment, but it doesn’t address the most damaging consequences of slavery and segregation.  It’s racial justice on the cheap. 

It creates the illusion of equality.  Justice O’Connor’s opinion in Grutter v. Bollinger is quite transparent about this:  “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”  The entering class of Harvard is to be selected, as Robert Delahunty once put it, on the same principle as “models in a United Colors of Benetton advertisement.”  The obsession with appearances also drives the demand for obfuscation, as when the Court allows race to be a plus factor but bans quotas, even though these are functional equivalents.  And it also stokes racial resentment: for every black student admitted, there are 100 white ones who know, to a moral certainty, that they would have gotten that slot.

The left shouldn’t settle for this.  It should demand a lot more.  I would cheerfully jettison affirmative action in favor of measures that would actually improve the condition of the worst off people in American society, black and white.  Maybe Congress could do it, in a grand bargain that clarifies the Civil Rights Act while at the same time taking more concrete measures against racial subordination.  I have no illusions that that will happen.  The proposal that is on the table is to abolish affirmative action and replace it with nothing at all.

One doesn’t need to love affirmative action to worry about Students for Fair Admissions v. Harvard.  I won’t try to adjudicate the merits of the lawsuit, since the expert statisticians are in deep disagreement.  If Harvard does discriminate against Asian-Americans, that’s nasty.  Discrimination against an ethnic minority is exactly what the law aims to prohibit.  On the other hand, it’s confused to say that Asians have any special stake in eliminating affirmative action for African-Americans.  Even if you set aside a quota for that group, that says nothing about what you do with the remaining slots.

Everyone understands that this litigation aims to beat a path to the Supreme Court, and to persuade the Court to discard the decades-old understanding of Title VI in favor of an absolute bar on any consideration of race.  The consequence would be a significant reduction in the number of black students at many universities.  This private litigation may be the opening wedge of more lawsuits to come.  The Trump administration is preparing to redirect resources of the Justice Department’s civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants. 

What will it mean for a Republican Justice Department to start investigating colleges for telltale signs that there are too many African-Americans?  It would fit very neatly into a dangerous narrative.  Only 27 percent of Republicans think that black people experience a lot of discrimination today, but 43 percent think that there is a lot of discrimination against white people.  (In the past few years, the percentage of Republicans who believe that Muslims, LGBT people and Jews face discrimination has likewise dropped.)  This litigation promotes a narrative in which incompetent and undeserving black people are taking desirable spots from whites.

Chief Justice Roberts writes:

Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.

Not a word about subordination: racism divides groups that he imagines to be otherwise equal.  The problem is thinking of ourselves in tribal terms. 

But stipulate that he’s right, and look at what this litigation does – again, to the extent that its goal is the elimination of all racial classifications.  It is widely understood, by left and right, to be an effort to enlist Asian-Americans to form a bloc with whites, to resist the claims of blacks.  It promotes the politics of racial hostility.

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