Theodore Shaw, associate director-counsel of the NAACP Legal Defense and Education Fund, argues that because “Race Still Matters” it should be cemented into the Constitution so that it will matter forever. (Washington Post, March 1, 2003, p. A19.) Along the way, he offers yet another C’est Moi! justification for racial prefereces: that without them, he would not have been accepted at Wesleyan or Columbia Law School. (I discussed another example of this justification here.) Indeed, he goes so far as to describe Bakke as a “devastating loss” for blacks, presumably because it barred both hard quotas and compensatory discrimination. (But Justice Powell’s “plus factors” to promote diversity “snatched victory fromt he jaws of defeat.”)
One can readily understand why Mr. Shaw regards his own success as compelling justification for the racial discrimination against someone else required to achieve it, but there may be some benefit in those of us without his interest examining the argument. Let us begin by assuming, with him, that he would not have been accepted at Wesleyan or Columbia without the racial preference he received, although in fact that may not be true. (In the absence of preferences, after all, some minorites are still admitted into even the most selective schools.) Still, there is no reason to assume that it was Wesleyan and Columbia or nowhere. Since Wesleyan found him “qualified,” he presumably would have been accepted elsewhere, and since it sounds as though he was poor he would have qualifed for financial aid. Indeed, he might have wound up exactly where he is, for even the NAACP LDF doesn’t require graduation from elite colleges and Ivy League law schools of its employees. Nor is there any reason to assume that the white’s, Asian’s, or other non-preferred minority’s place Mr.Shaw took would have led a life of sloth and indulgence, contributing nothing comparable to Mr. Shaw’s contribution to the national well-being. I mean no disrespect to Mr. Shaw when I say that, placing his success and contributions on one side of the scale and the principle of non-discrimination on the other, there seems to be no compelling national interest in sacrificing the latter for the former.
Moving beyond self, Mr. Shaw repeats the canard that racial preferences do not involve discrimination because most whites, Asians, etc., who are rejected from selective schools are not rejected because of race.
[President Bush’s] mischaracterization of the selection process encourages white students who are not admitted to the school of their choice to blame affirmative action. Perhaps it is easier to attack the minuscule number of minority students admitted than to accept rejection. In most cases it is the end result of intense competition for limited slots (at the University of Michigan, more than 25,000 applicants seek about 5,000 freshman slots), coupled with a host of other demands ranging from recruitment of residents from the rural part of the state to preferences for children of alumni. These factors, ostensibly race-neutral, usually benefit white students.
Thus we are back with IUNS, the Invidious Ubiquitous Non Sequitur holding that so long as some people receive benefits that are not based on racial criteria it is legitimate, perhaps even mandatory, that other people receive benefits based on their race.
The place to make this argument is not in the Supreme Court. It is in Congress and the states, urging them to repeal all civil rights legislation barring discrimination based on race, and perhaps the 14th Amendment as well.