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.