Affirmative Action Pro And Con

An old and good friend sent the following partial comment on my essay about affirmative action at Stanford linked in my last post:

I remain a supporter of diversity on campus, because I think that there is an important difference between keeping members of a group out due to prejudice and taking pains to admit members of groups long discriminated against to redress the effects of that prejudice and to break down the social barriers that our history of discrimination has created.  Nonetheless, I recognize the inconsistencies you identify and have struggled with the practical consequences of my beliefs in the classroom, where I have sometimes wondered whether the academic pressure I have placed on some students has hurt more than it has helped.

Since I would say very little that I have not said to her over the years — neither of us has changed our mind much — I am posting some thoughts here rather than in an email reply in hopes that others might be interested.

  1. Treating some better and others worse because of their race is or should be both illegal and unconstitutional. I will return to objections to racial preference based on law and underlying principles of fairness below.
  2. Treating some better and others worse because of their race produces rather than reduces racial anger and social conflict.
  3. Of course there is a difference between excluding members of a group because of prejudice and giving them a preference in an attempt to overcome past prejudice and produce whatever benefits “diversity” can confer, but that difference has little if any relevance to the debate over affirmative action. First, since affirmative action in college admissions necessarily involves reducing the number of Asians, it’s not at all clear that prejudice is altogether absent — what’s wrong, after all, with a campus that has too many Asians? That aside, affirmative action does not present a choice between inclusion to do good and exclusion based on prejudice; it is choice between between inclusion based on race and treating all without regard to race. The rejected Asians who would have been admitted but for the fact they were Asian, i.e., who would have been admitted had not the race of others been given a preference, are not likely to be much mollified by being told that the discrimination that victimized them was “benign” and that prejudice against them had nothing (or little) to do with their rejection.
  4. Does preferential admissions really do anything to “redress the effects” of past prejudice? If so, how? If the effect of past prejudice is to leave current applicants less qualified, how does admitting them reduce that effect? In fact, if Richard Sander et. al’s argument and evidence about “mismatch” causing racially preferred admits to fall to the bottom of their classes or fail in disproportionately  high numbers is correct (short summary here) — that is, to be less successful than if they’d attended a  less selective institution where their abilities were similar to their peers — then perhaps affirmative action does more to perpetuate than redress the effects of past prejudice. My correspondent recognized this possibility in her own classes.
  5. Similarly, admitting less qualified students who perform at the bottom of their classes and fail to graduate at higher than average numbers almost inevitably reinforces rather than redresses racial stereotypes. If blacks were not “different,” after all, they would provide no “diversity.”
  6. Similarly, what evidence is there that increasing the black presence from, say, 4% to 7% or 10% (typical at many selective institutions) breaks down social barriers? If it did, would there be so many segregated dorms, segregated graduation ceremonies, “safe spaces” for black students?
  7. Affirmative action is a form of exploitation, using blacks for the benefit of whites.  It rests on the argument that it is necessary to lower the bar for preferred minorities so un-preferred Asians and whites can receive the benefit of being exposed to them. The preferentially admitted do not, after all, provide “diversity” to themselves. They would receive whatever benefit it provides even if they attended less selective institutions.
  8. Arguments for racial preference in admission and hiring — that is, looking far beyond traditional qualifications — has fueled the increasingly vociferous argument that “merit” is simply an arbitrary construct based on systemic racism.
  9. “Diversity”? Ten years ago Roger Clegg, then president and general counsel of the Center for Equal Opportunity, and I wrote an article giving ten reasons why we were Against Diversity. Our section headings: “Diversity” is Discrimination; “Diversity is Indistinguishable from a Quota; Applying While Asian: “Diversity”  is Racial Profiling; “Customer Preference” Provides No Justification for Discrimination; “Diversity” Is Supposedly Not Intended to Benefit Blacks, and it Actually Doesn’t; “Yes, But Where is the Omelet?”; Mismatch; “Diversity Reinforces — and Depends on — Racialism and Stereotypes; “Diversity” Is an Especially Intrusive, and Illogical, Government Regulation; “Diversity” Devalues the Traditional American Value of Treating Individuals “Without Regard to Race, Creed, or Color.”
  10. In another article, also ten years ago, Roger provided a short summary of the policy arguments against racial preferences. Noting that defenders of necessity stress their supposed “educational benefits,” he asked:

Now, how compelling do these “educational benefits” have to be? At a minimum, they have to be compelling enough to outweigh the costs of using racial preferences. In fact, they must significantly outweigh those costs, since if something does as much harm as good, or even just a little more good than harm, the benefits can hardly be compelling.

So here’s a list of the costs of using racial preferences in university admissions: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it mismatches African Americans and Latinos with institutions, setting them up for failure; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school and encourages a scofflaw attitude among college officials; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership – an untenable legal regime as America becomes an increasingly multiracial, multiethnic society and as individual Americans are themselves more and more likely to be multiracial and multiethnic.


My argument in No. 1 above — that universities treating some applicants better and others worse because of their race or ethnicity is illegal — is, ironically, both the strongest and weakest criticism of racial preference.

Strongest … because Title VI of the Civil Rights Act is crystal clear: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Although it is now largely forgotten, or ignored, the original requirement of “affirmative action,” President Kennedy’s Executive Order 10925 (1961), used essentially identical language, requiring government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” That language was repeated in President Johnson’s Executive Order 11246 (1965).

Weakest … because since Justice Powell’s lone, but controlling, opinion in Bakke the Supreme Court, usually by narrow majorities, has “construed” Title VI to mean not what it says but whatever the Court decides the 14th Amendment’s requirement of “equal protection” means.

In the Harvard and University of North Carolina cases this term the Court may be about to undo some of the damage it has done to the “without regard” principle of colorblind equality, but even if it does so in the long run that may not make much difference.  I don’t think there is one Democrat in Congress who believes in — or regardless of belief is willing to go on record in support of — the principle that people should be treated “without regard” to race. If the Democrats were to win the presidency and a strong enough majority in the Senate they could — as many have called for — eliminate the filibuster and pack the Supreme Court. A House majority could also revise or repeal the troubling “without regard” language in the Civil Rights Act.

In short, contemporary progressivism and the Democratic Party in which it is embedded have rejected  the principle of colorblind equality root and branch in favor of “equity,” rejecting not only colorblindness but also viewing the results of affirmative action as woefully inadequate. “Just as colorblind non-discrimination came to be denounced in progressive circles as racist,” I argued in a summer 2021 article on the move to “equity,”  so too will the sort of affirmative action practiced for the past fifty years.” That article quoted a litany of university presidents saying they needed to “do better,” acknowledging the “failure of the affirmative action they all have practiced for decades.”

Anyone who thinks the possibilities outlined above are fanciful or remote must not have been paying attention to what liberals/progressives have now been arguing for years. The ink had hardly dried on California’s 1996 Proposition 209, amending the state constitution to prohibit racial preferences, when a federal district judge issued an injunction against it, agreeing with the ACLU and other plaintiffs that it violated the 14th Amendment (!) because it outlawed “existing governmental race- and gender-conscious affirmative action programs … while leaving governmental entities free to employ preferences based on any criteria other than race or gender.” In other words, prohibiting discrimination based on race violated the 14th Amendment’s prohibition of discriminating on the basis of race.

Even the notoriously liberal Ninth Circuit virtually laughed this argument out of court — “If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.” Nevertheless, several years later when a substantial majority of Michigan voters approved a clone of California’s Proposition 209, progressives were back in court with the same argument. This time, however, they lost in district court but won at the Sixth Circuit, where the eight judges appointed by Democrats accepted the argument rejected earlier by the Ninth Circuit, with the seven Republican-appointed judges dissenting. I have discussed five serious, troubling fallacies of the majority opinion here. The Supreme Court reversed in Schuette v. BAMN, but a future Court dominated by Democratic  justices would almost certainly agree with the Sixth Circuit majority.

All of which is to say that “the law,” at least as currently interpreted, is not the strongest argument against racial preferences. Although I believe they would be prohibited by the Constitution properly interpreted, in a long post twenty years ago, Separation of Race And State, I argued that the principle of religious neutrality compels neutrality, i.e., colorblindness, regarding race as well as religion. That principle, I argued,

derives not so much from the text of the Constitution as from something deeper in the very structure of our society. That something is the overriding fact of religious pluralism, a pluralism that in the absence of official neutrality would lead to constant strife and conflict … that the small “c” constitution of American society of necessity dictates the meaning of the large “C” Constitution….

[I]f the very structure of American society requires a principle of neutrality that in turn requires a separation of church and state … , should it not also compel a separation of race and state? After all, as the eminent Berkeley historian David Hollinger has written, in our time “ethno-racial affiliations have come to play a role similar to that played by religious affiliations at the time of the founding of the republic and throughout most of American history.” (POST-ETHNIC AMERICA, Basic Books, 1995, p. 123). Surely racial and ethnic preferences are at least as “divisive” today as debates over school vouchers, which seem to have bothered a few litigants and the courts much more than the society as a whole.

I could, and thus no doubt should, have said all this in many fewer words: racial preference is bad policy propped up by bad law.

Say What?