Regulating The Racial Market

As Mickey Kaus has just reminded us, “every reporter knows if you have three examples you have a trend.” I myself have just noticed a trend, and it’s not pretty. Since I’m not a reporter I’m going to mention only two examples, but I think you’ll agree they represent, well, a trend. I call it, as you will have noticed, “regulating the racial market,” or RRM for short.

Now my RRM trend, as with most important trends, seems so familiar that its fundamentally radical nature and its significance are easy to miss. For example, it is almost a commonplace to observe — as you have observed me observing here since this blog was born — that racial preferences can be justified only by reliance on a new principle of fairness that elevates group rights over individual rights.

This sounds familiar because it is familiar. Critics of affirmative action have been making this point since the beginning of affirmative action in the late 1960s.

But in the last ten days or so I’ve begun to appreciate — some of you may have realized it all along — that this shift, important as it is, is only one part of a fundamental redirection of American liberalism.

Yesterday I quoted Dennis Shields, director of admissions at Duke Law School and former dean of admissions of the University of Michigan Law School, claiming that the racial discrimination required to promote preferences is insignificant because there are not enough victims to worry about.

You always hear about hundreds of well-qualified candidates who were passed over…. We only need to visit those campuses, to walk the halls of our selective law schools to see that they are predominantly white.

…. To the extent that affirmative action does disadvantage some candidates, it is a very small number of people.

Shields was echoing the same sentiment I recently quoted from an NAACP attorney:

… although there is a widespread perception that masses of white students are losing their seats because of affirmative action, in reality, race-conscious policies have a negligible impact on whites…. The University of Michigan is at least 80 percent white, so it isn’t credible to claim that it or its affirmative action policy discriminates against whites as a group.

And there’s the rub: “as a group.” Critics of preferences don’t claim they discriminate against whites as a group; they claim they discriminate against whites (and Asians and many others) as individuals. Preferentialists, on the other hand, justify discrimination against individuals in order, they claim, to provide equality to groups.

Providing equality to groups, to repeat, requires discrimination against individuals, which ceases to be regarded as a real harm. The only discrimination that counts, in this view, is statistical, i.e., “underrepresentation.”

With the abandonment of an individual right to be free from racial discrimination, race, in short, becomes a commodity to be regulated like any other commodity. The question to be asked of this racial regulation thus is not whether it violates a right — that individual right has been discarded — it is whether it promotes the public interest. This argument was presented clearly five years ago by Michael Sandel of Harvard, one of the leading philosophers of modern liberalism.

Here lies the far-reaching assumption underlying the diversity argument for affirmative action: admission is not an honor bestowed to reward superior virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Provided the criteria of admission are reasonably related to a worthy social purpose, and provided applicants are admitted accordingly, no one has a right to complain.

The moral force of the diversity argument is that it detaches admissions from individual claims and connects them to considerations of the common good. (“Picking Winners,” THE NEW REPUBLIC, December 1, 1997, p. 17)

In the beginning affirmative action meant taking affirmative steps, such as outreach, to insure that discrimination did not happen. When it made the turn to preferences, they were justified as a necessary but temporary exception to the principle of non-discrimination — much as censorship is justified in wartime. But just as a trespasser is awarded adverse possession if he is allowed to trespass long enough, those who have been trespassing on the non-discrimination principle now claim to own it, and to have redrawn its boundaries. Now, far from being a temporary expedient to right a wrong or deal with a crisis, the new principle of diversity requires constant regulating and fine tuning of the racial/ethnic (and eventually religious) market to maintain the proper mix by group.

From the vantage point of the new liberalism, racial preferences, far from being a temporary exception, are the very embodiment of the modern regulatory state. Opposing them in the name of an individual right to be treated “without regard” to race, creed, or color now sounds at best quaint and old-fashioned to liberals (when it doesn’t sound positively evil), exactly like those long dead reactionary Neanderthals who used to say government regulation of private property violated individual rights.

This new liberalism dominates the upper reaches of higher education, the major foundations, editorial offices of the establishment press, organized labor, the leadership of the Democratic Party, and corporate boardrooms. If a new constitutional convention were held today, its view of group rights might well prevail. But, unfortunately from the point of view of the new liberals, we are still living under the old Constitution, which is one of the two leading barriers resisting the advance of the diversity principle of fairness and equality. The other barrier is public opinion, which opposes racial preferences by substantial margins.

Of course, according to preferentialists all that means is that the public is too dumb to understand. Reader Fred Ray sent a story that ran last night on the Associated Press State and Local wire (no longer available at the www.mlive.com/newsflash link he sent, or elsewhere on the web, but findable on Nexis) making this point very well.

The Associated Press

2/10/03 6:04 PM GRAND RAPIDS, Mich. (AP) — University of Michigan President Mary Sue Coleman said a poll of Michiganians released last week showing overwhelming opposition to the university’s controversial admissions policy clarifies her contention that those opposing the policy, including President Bush, do not understand it well….

The poll surveyed 500 registered Michigan voters and found 63 percent of those asked opposed the university’s policy, 27 percent favored it and 10 percent were undecided.

Coleman repeated the shibboleth discussed above — that because there are relatively few victims of discrimination, there is no discrimination.

While conceding the policy is intended to give a boost to minority students, Coleman said chances of it actually impacting non-minority students are very small given the numbers of students who apply for admission each year.

She said the university has about 25,000 applicants each year for some 5,000 spots in its undergraduate programs and another 5,000 applicants for 350 seats in its law school.

“The chances of this affecting you if you’re a non-minority student are about 1 percent, up to 4 percent, just because our numbers are so big,” Coleman said.

This is rather like saying that because the chances of any individual being mugged are slim, mugging isn’t really a crime.

As an old liberal, I would like nothing better than for the views of the new liberals to be widely disseminated. I can’t think of a better antidote to those views than wide understanding of what they are.