I began to reply to this comment by Hull, a valued new commenter here, on this post below, but the point Hull makes is offered so often in defense of racial preferences that I decided (unilaterally; that’s the virtue of having your own blog) to promote my reply to a full-fledged post.
Racial preferences are not administered with animosity or resentment. In other words racial preference is not invidious. You are basically equating racial preference of today with racial segregation or some other invidious discrimination from the past and that is not the intent of racial preference or the result.
The idea that the only discrimination that should be proscribed is invidious discrimination, discrimination motivated by “animosity or resentment,” etc., is not unreasonable on its face. Both the 14th Amendment and the various civil rights acts of the 1960s could have done that, but they didn’t. They did not require individuals to be treated without regard to their race, creed, or color … except when the motive of those discriminating against them was, in the eyes of the discriminators, benign.
One neat trick of the “invidious” argument is thus to redefine “discrimination” to mean only policies that have the purpose or effect of denigrating a group to which an individual is said to belong. On this view, in other words, the only discrimination individuals have a right to be free from is discrimination that has the purpose of demeaning the racial, ethnic, or religious group to which they belong. In other word, requiring “discrimination” to be “invidious” transfers the right to be free from it from the individual to groups, all without benefit of legislation to that effect.
There is a very good reason civil rights laws were not written to require an invidious intent: a great deal of what common sense tells us is discrimination — and discrimination that we want to proscribe — is not associated with invidious intent or effects. Consider, for example, a hypothetical proposal to promote greater “diversity” in a law school by firing a number of Jews, who are vastly “over-represented,” and hiring more evangelical Christians, who are vastly “under-represented.” No invidious anti-semitism here. In fact, the early Ivy League quotas (which reduced the number of Jews but did not bar them altogether) were based in part on a fear that Jews were superior, not inferior. Most of us continue to believe that discrimination against, or for, an individual because of his or her religion is and should be barred, even though this discrimination would frequently involve nothing “invidious.”
One striking feature of the preferentialists’ use of “disparate impact” theory to attack many forms of what they see as discrimination is that it so blatantly conflicts with their defense of other policies they want to defend: requiring a high school diploma for a job is discriminatory, they say, because it has a disparate impact on blacks, but preferring blacks in admission is not discriminatory because there is no intent to denigrate or demean Asians. In short, the best example of why “invidiousness” does not work as a litmus test to determine discrimination is that, in many contexts, the most avid defenders of racial preferences reject it. They, after all, are the ones who reject the idea that discrimination requires intent, who want to ban this or that policy as discriminatory because it has a “disparate impact.” In the past few days, for example, I have discussed (here) assertions of discrimination by New York City ad agencies where there are no allegations of actual discrimination but merely of “under-representation” of minorities at the top. Similarly, in the Texas redistricting dispute (discussed most recently here) the Democrats said it was impermissibly discriminatory to transfer 100,000 Hispanics from this district to that one, even though there was nothing even allegedly “invidious” involved and the purpose in fact was to promote the election of a Hispanic, Rep. Bonilla, in the district from which the Hispanics, because they reliably vote Democratic, were transferred.
In fact, while we’re on voting, consider this: if an invidious, denigrating, demeaning intent or even effect is required in order to bar something as discriminatory, what would prevent a city, in the name of promoting real racial equality, from limiting the number of voters in city elections to the same number of voters from each race or ethnic group? True, this might decrease the ability of “whites” to elect “white” candidates (assuming, of course, that “whites” vote as “whites” for “whites”), but then racial preferences in admissions to the University of California significantly reduced the percentage of Asians who were admitted (and somewhat reduced the percentage of whites) and that presumably was fine.
Note, moreover, that for “disparate impact” analysis even to apply the policy or behavior in question must be neutral on its face — say the SAT test or Duke Power Company’s decision to require a high school diploma of all new hires (a decision that the Supremes disallowed in the first major “disparate impact” case). But racial preference policies by definition are not neutral on their face. They discriminate on the basis of race, “facially” and substantively and by design.
This argument, finally, does not equate racial preferences with segregation. But to say that segregation was much worse than racial preferences, which it clearly was, is not at all to say that the only discrimination that was or should be outlawed is discrimination rooted in racism.