In this post yesterday on a tenure controversy I mentioned that I’ve never been impressed with the “role model” justification for affirmative action (and gave one reason why not). In an Addendum I noted that Roger Clegg reminded me that the Supreme Court had also rejected that justification in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).
Re-reading that case (one of my Stanford professors used to say that scholars never read anything; we always re-read), I’m reminded that I also have problems with a justification for “racial classification” that the Supremes do accept. From Justice Powell’s majority opinion in Wygant:
The Court of Appeals, relying on the reasoning and language of the District Court’s opinion, held that the Board’s interest in providing minority role models for its minority students, as an attempt to alleviate the effects of societal discrimination, was sufficiently important to justify the racial classification embodied in the layoff provision…. The court discerned a need for more minority faculty role models by finding that the percentage of minority teachers was less than the percentage of minority students….
This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination….
On this analysis, racial preferences are allowed only to produce the percentage of minority employees that would have existed in the absence of proven prior discrimination by the employer. By contrast, Justice Powell wrote,
the role model theory employed by the District Court has no logical stopping point. The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose. Indeed, by tying the required percentage of minority teachers to the percentage of minority students, it requires just the sort of year-to-year calibration the Court stated was unnecessary in [Swann v. Charlotte-Mecklenburg Board of Education, 431 U.S. 324 (1977)]….
Moreover, because the role model theory does not necessarily bear a relationship to the harm caused by prior discriminatory hiring practices, it actually could be used to escape the obligation to remedy such practices by justifying the small percentage of black teachers by reference to the small percentage of black students…. Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I).
My problem with this line of analysis (and it appears in many Court cases) is that it assumes that the “harm” of discrimination was not only to the original individual victims but also the resulting “underrepresentation” of minorities in the work force at issue. Thus he Court has held that to eradicate those “vestiges” of discrimination it is legitimate to give preferences to individuals who were not themselves victims of discrimination at the expense of other individuals who were and are not discriminators. This “vestige” eradication, moreover, at least implies a group right to representation and all but requires the use of racial quotas, which alone can provide the “only logical stopping point” so important to Justice Powell.
It’s too bad, in my view, that the Court did not clearly and plainly hold that the right to be free from racial discrimination inheres in individuals, not groups, and thus that discriminating against non-discriminators in the present can never be a legitimate remedy awarded to anyone who was not a victim the employer’s discrimination in the past.
