This week's news that the Supreme Court will hear a case on policies to increase the number of black and Hispanic students enrolled at public universities in Texas reanimates the affirmative action debate, just in time for America to decide whether to elect its first black president to a second term. Our friend Joel Mathis forcefully expresses several
pro-affirmative action arguments:
1. Diversity is good because diversity is good: "Why should diversity be a goal? That's easy," Mathis writes. "America is diverse. Unless
you believe that white men possess all the talent and smarts - and some
people really do believe that - it's criminal not to foster the
resources and resourcefulness of all our country's citizens."
2. Fairness demands compensatory justice: "For more than 300 years, America's culture and law enforced racial
preferences - whites, of course, were preferred. We still live with the
ramifications: A few decades of affirmative action don't make up for
the fact that many minority groups weren't allowed to start the 100-yard
dash until whites got a 50-yard head start."
3. Affirmative action may be problematic, but its absence would be a significantly bigger problem: "[A]ffirmative action sprung up as a response to an actual problem
That ... 300 years of slavery and Jim Crow left a lot of
folks without sufficient resources ... to
achieve and succeed on society's new colorblind terms... [A] longstanding legal-cultural regime enforced both by senators and sheriffs for hundreds of years might've caused damage that still needs repair...
Simply put, conservatives don't seem to have an animating
principle that moves them to address problems of this sort."
I've never met anyone
who really does believe that white men possess all
the talent and smarts, and neither has Mathis. Happily, his sensible conclusion that we should foster all our citizens' abilities does not follow from his overwrought premise. Neither, however, does support for affirmative action follow from the premise that we should foster all our citizens' abilities. We - as a society, not just through public policies - should do so through good schools, safe and cohesive neighborhoods, strong families, voluntary organizations that deepen an ethos of caring and sharing, a vigorous economy that expands opportunities, and by strengthening the ties of affection and respect that bind Americans as
Americans closer together by transcending race, class, faith, and ethnicity.
Affirmative action is irrelevant or harmful to the goal of fostering every American's resources and resourcefulness. Instead of encouraging people to make the most of their abilities, it rewards them for making the most of their grievances, allocating opportunities and
outcomes by calibrating the impact of the historical victimization of a large group on the life prospects of individual members of that group.
That enterprise isn't feasible, and wouldn't be fair if it were feasible. The rectification of racial injustice through affirmative action requires us to be a
great deal smarter than we can be. In the 1978 Bakke
Harry Blackmun defended affirmative action as a way of "putting minority
[medical school] applicants in the position they would have been in if
not for the evil of racial discrimination." The problem, as Thomas Sowell
explained in Civil Rights: Rhetoric or Reality?,
is that "the idea of restoring groups to where they would have
been - and what they would have been" if past discrimination had never
taken place, "presupposes a range of knowledge that no one has ever
To make this impossible problem manageable, affirmative action proceeds from the planted axiom that in a society that has extirpated ongoing discrimination as well as all residual effects of past discrimination, every occupational and economic subgroup will be a demographic miniature of the entire population. Sowell points out that the world overflows with evidence refuting the idea that discrimination is the decisive
variable explaining differences in the status and attainments among
various groups: The Chinese have been and
continue to be targets of discrimination in Southeast Asia. Yet, in
Malaysia, Indonesia, Vietnam, Thailand and the Philippines, "the Chinese
minority - about 5 percent of the population of southeast Asia - owns a
majority of the nation's total investments in key industries. By the
middle of the twentieth century, the Chinese owned 75 percent of the
rice mills in the Philippines, and between 80 and 90 percent of the rice
mills in Thailand.... In Malaysia, where the anti-Chinese
discrimination is written into the Constitution, is embodied in
preferential quotas for Malays in government and private industry alike,
and extends to admissions and scholarships at the universities, the
average Chinese continues to earn twice the income of the average
Looking at America, Sowell notes, "Japanese immigrants to the
United States also encountered persistent and escalating discrimination,
culminating in their mass internment during World War II, but by 1959
they had about equaled the income of whites and by 1969 Japanese
American families were earning nearly one-third higher incomes than the
average American family." In general, Sowell examined many ethnically and racially heterogeneous societies and concluded that, "large statistical disparities have been commonplace, both in the
presence of discrimination and in its absence." He cites one scholar comparing different societies who
wrote, "All multi-ethnic societies exhibit a tendency for ethnic groups
to engage in different occupations, have different levels (and, often,
types) of education, receive different incomes, and occupy a different
place in the social hierarchy," and another who "examined the idea of a society where groups are
'proportionately represented' at different levels and in different
sectors. He concluded that 'few, if any, societies have ever
approximated this description.'"
There is an inescapable zero-sum logic: The goal of ensuring that no group is "under-represented" in society's sought-after berths necessarily means it's intolerable for any group to be "over-represented." It is hard to see how a society embracing that mission can be fair or free. Blacks, for example, constitute
13.6% of the U.S. population, but 0% of the U.S. Senate. Jews, meanwhile, represent
2% of the U.S. population and 12% of the Senate
. (From 1992 to 2010 both senators from Wisconsin, the state with the highest proportion of German-Americans in its population, were Jews.) Fixing this "problem" by race-norming elections so that under-represented groups start out with additional votes and over-represented groups with a vote-handicap would be consistent with the spirit of affirmative action, but irreconcilable with the idea of free elections in a democracy.
Prior to the 1978 Bakke
decision, "diversity" was a negligible consideration in the affirmative action debate. It became important - indeed, became a word synonymous with affirmative action - only because a tie between four justices who opposed affirmative action as illegal racial discrimination, and four who favored it as compensatory racial justice, was broken by Justice Lewis Powell's concurring opinion. Powell said that school admissions quotas impermissibly discriminated against applicants in the wrong demographic categories, but that using race as a "plus factor" permissibly furthered schools' legitimate interest in a diverse student body. The affirmative action supporter Dahlia Lithwick has shown admirable candor in admitting
that Powell's diversity rationale doesn't pass the laugh test: "Powell wasn't really interested
in filling colleges with Alsatian goat herders. He was looking for some
neutral-sounding reason to give minority candidates a small 'plus' in
the admissions office. But subsequent courts of appeals have called him
on it. Refusing to honor his code, they take him at his word. If
diversity is important, they say, admit more Wiccans."
Mathis, like most affirmative action defenders, uses the diversity and compensatory justice rationales interchangeably. They are not only distinct, however, but also at cross-purposes, as Ilya Somin has argued
. Eight years ago Harvard University faced a controversy when Jesse Jackson, Sr. accused it of practicing affirmative action in a way that did too much on behalf of diversity but too little to advance the cause of compensatory justice. A majority, perhaps a large majority, of Harvard's black undergraduates were immigrants or the children of immigrants from the West Indies or Africa, or the children of biracial couples. (Barack Obama is both, a different kind of two-fer.) That meant that most of the blacks at Harvard did not have four grandparents descended from slaves, the blacks "for whom affirmative action was aimed in the first place," according to Jackson.
Affirmative action's defenders would do well by the virtues of coherence and candor to bring a merciful close to 34 years of cant about diversity and talk about what affirmative action is and has always been about: Figuring out how big a head start blacks should be given now to make up for the discrimination blacks endured for many years, how long that head start should be given to them, and how we'll know when affirmative action has succeeded and can be retired. To work within such a frame, however, would be a radical departure from a half-century of bad-faith advocacy on behalf of affirmative action. The most forceful advocates of the 1964 Civil Rights Act insisted over and over that it would never, by any stretch of the imagination, require employers or educators to favor any
applicant over any other applicant on the basis of race, or to face sanctions for having the "wrong" demographic mix in a workforce or student body. The wheels that would break this promise started turning the day President Johnson signed the bill into law. If affirmative action's friends want to help it they can, at long last, tell the truth about what it entails. If a law that says no person may be discriminated against means some persons may, and must, be discriminated against, what recourse and what justifications do we offer to applicants denied school or employment opportunities on account of their race?