The New Republic

I think reasonable people can disagree about the efficacy of "affirmative action" as a matter of policy.  On the other hand, the argument that it presumptively violates the Equal Protection Clause is sophistry.  But that is too big a topic for this post.  A little off topic -- I have always thought it was Orwellian to refer to affirmativce action policies as "preferences."  The objective of most educational affirmative action programs is to make the demographics of the student body roughly reflective of the demographics of the relevant population from which applicants are drawn. Whatever else one may think of affirmative action, how does that constitute a "preference" for one group over the other?

BTW, the denial that racism exists or that its legacy explains current racial pathologies is also a hallmark of contemporary Conservatism.

- dhurtado

March 25, 2009 at 9:51am

I would say that when you apply different criteria among racial groups, in order to increase the representation of one group regardless of its members' ability to meet entrance standards, that constitutes a "preference" for that group.  One can reasonably argue for racial preferences or against them, but don't deny that that's what they are.

- dhauck

March 26, 2009 at 12:46pm

"On the other hand, the argument that it presumptively violates the Equal Protection Clause is sophistry. But that is too big a topic for this post."

I can see why you don't want to elaborate on that statement, since it's not true. You might reasonably disagree with the position. But it's not "sophistry" -- it's a serious opinion.

- johnalthousecohen

March 26, 2009 at 8:03pm

"BTW, the denial that racism exists..."

Who is denying that racism exists? Name one person. ("Conservatism" isn't a person.)

- johnalthousecohen

March 26, 2009 at 8:05pm

"Whereupon--this notion of changing standards for brown students based on their "diversity" from the white students just doesn't cohere. Look at the justifications up close and they just fall apart. "

I don't think this is true.  Students who roomed or attended classes with students of a race believed in fewer racial stereotypes and were  less likely to be hostile to that race.  I think that kind of molding kids into good citizens is better done at much lower grade levels, but as a justification it doesn't "fall apart".  I think more intellectual/political diversity would show the same kind of positive effects and be more appropriate for a college level, but I really don't care enough to get involved with THAT fight

- Simon Greenwood

March 26, 2009 at 10:58pm

Affirmative action in America goes all the way back to pre-revolutionary times. It wasn't called that, of course. Instead it was simply taken as a matter of course that those who owned and operated the means of production....generally folks who were white, male, Protestant and landowners....would gorge on the choicest of morsels when the social, political and economic pie was being apportioned. In, among other places, the market.

In fact, it took a long and bloody civil war to end de jure affirmative action for white males in the South. But that was soon replaced by de facto affirmative action---Jim Crow. And in the North, such racial barriers were only a matter of degree not kind

You have to go well into the 20th century before the civil rights movement started demanding that affirmative action finally start going in the other direction. And when it did, boom! Suddenly the Republican Party [and Reagan Democrats] expressed outrage about "reverse discrimination". Not once did discrimination ever seem to bother them when it enabled their own kind to pluck the best jobs and the best schools and the best opportunities. No, only when folks of color and women started demanding equal opportunity did they note just how shocking and apalling it is to discriminate against someone because of skin color or gender.

The hypocrisy astonishes us still today.

george walton

- iambiguous

March 27, 2009 at 3:05am

to johnalthousecohen,

implicit in the conservative affirmative action argument is to deny or, at the very least, not discuss the continuing existence of racism.  thus, the conservative argument that the playing field between races would somehow be "level" if only preferences weren't given in admission, or that the only way in which the playing field is "skewed" is by racial preferences,  denies or omits the continuing existence of racism, which is in reality another way the playing field is skewed, regardless of racial preferences.  

at the end of the day, though, these arguments are tribal and not really fully honest.  if you want to be anti-affirmative action you can just deny racism exists (with the exception of preferences), and if you want to be for it you can act like the only reason two groups don't perform identically is because of outside racism. the truth lies somewhere in the middle.

- lsokol

March 27, 2009 at 1:57pm

dhurtado:

The argument that affirmative action presumptively violates the Equal Protection Clause is not only not sophistry (forgive the double negative), it’s correct. It’s correct because presumptive does not mean conclusive. I’m no student of American Constitutional law, but in Canada, under out Charter of Rights and Freedoms, discriminating on the basis of certain enumerated categories—including race—is sufficient to invoke a complex equality analysis, which then, if the analysis concludes the state’s treatment is violative, raises the legal question of whether the unequal treatment can be justified in a free and democratic society under which question a judicially prescribed analysis gets undertaken.

Considering the strict scrutiny test in the United States for suspect categories, including race, I’d argue that discrimination on the basis of race is presumptively, but not conclusively, a denial of equal treatment. The burden would then be on the state to justify the racially differential treatment and save the presumptive from becoming conclusive.

It is hardly Orwellian to speak of affirmative action policies as preferences, though it may be Orwellian to deny it. To have a student body reflective of the diversity of general population is precisely antithetical to the idea of a color blind society, where merit ought to be sole criterion for admission. But things don’t work that way for any number of complicated reasons, so, for academic purposes, a helping hand in the form of preferences, or weighting race for admissions, as opposed to quotas, which were never legally permissable, got fashioned originally to help achieve greater black attendance at different colleges.

Diversity became the tail that wagged the dog, as Justice Powell laid it out as a rationale in Bakke to save that particular litigated admissions policy. More pretext than rationale for giving black students the nod, diversity became the rationalization for privileging black students  on the basis of race to effect what no doubt at the time was commendable social policy. That policy itself was/is in tension with the constitutional demand for equal treatment. Also a test for constitutionality includes effects as well as intent. So if the effect of an affirmative action program is to privilege a group on the basis of race that counts against it,  though not necessarily fatally.

Now, while race is still an important factor in American life, it is, to my mind, now, commendable to argue that a helping hand be extended on the basis of class irrespective of race, and ithat class based criteria reflect a policy whose time has come. That policy makes mores sense than extending preferences to middle class black kids and will perforce create diversity since poverty knows no privilege.

I echo the person who called you out to say which conservative denies the existence of racism, assuming you are drawing a distinction between acts and pockets of racism and systemic racism as in America is a racist country.  I don’t take you to be saying that denying the latter—denying that America is systemically racist— is a hallmark of a Conservative. I can’t imagine you to be saying that. Are you?

Finally, “…that its legacy explains current racial pathologies is also a hallmark of contemporary Conservatism…” What respectable or otherwise conservatives speak of “racial pathologies” ,whether or not derived from racism, considering that pathology is a metaphor for illness?  I have heard black commentators, one for sure that I can think of, who trace(s) the black underclass, its prominence in imprisonment, its high proportion of intra racial crime, its academic failures and so on, to the legacy of slavery and its after effects including virulent systemic racism.

- basman

March 27, 2009 at 2:01pm

One of the problems with race-based preferences is that they ARE about class in a way.  Or, they are about class as refracted through racial identities (perceived or real).  Most people know that, for example, Asian-American kids are not normally awarded race-based admissions or scholarships despite the fact that, very often, the nominating criteria (e.g. in California) do not specifically mention race, but rather use fuzzy terms such as "traditionally under-represented communities" and the like.

The real argument minus PC dickering would run something like, "ok, it's true that in theory Asian-American applicants are a minority and have been subject to race-based discrimination also, but, come on, they grew up in middle-class homes and do very well in competitive exam structures anyhow -- they don't NEED these affirmative procedures."

This is a pretty accurate picture, I think.  However, the real problem begins to arise when, say, an African-American student applies for an affirmative action-type minority scholarship who clearly comes from a professional middle-class background with prosperous parents and patently obviously does not need such a break on either social or economic grounds.  And yet, that scholarship is much more likely to go to him/her than to a white student from a poor background who has struggled to get ahead.

The traditional affirmative action model uses a relatively small set of racial identities to posit a class position in our economic/social ladder, the consequences of which it tries to remedy.  But the problem that nobody seemed to think about earler is, what happens when the racial identity no longer corresponds to the class position that the concept orignally meant to correct?  The standard reaction from A-A supporters is then the diversity argument (= it's not just about giving poor minority kids a chance but also about a diverse mix in the classroom).  But the diversity argument falls apart when it comes to the middle-class student from the professional background because he/she is going to be able to attend college anyway.

- ironyroad

March 28, 2009 at 3:58pm

...But the diversity argument falls apart when it comes to the middle-class student from the professional background because he/she is going to be able to attend college anyway…

Not good law schools for example. The under representation, regardless of class, of black law students arrived at by their % of the general population was a driving force behind the University of Michigan Law school admissions policy and litigation over that policy, for example.

So given that under representation at least for certain top tier and even second top tier professional schools—some of the California Law Schools, I think, for example--at least as against your argument, the diversity argument holds water. Why middle class black kids are so under represented needs an answer, and the anlaysis of that isue issue can lead to different conclusions. Which is to say, an analysis of that under representation *may* lead to the conclusion that racial preferences are still needed because a legacy of slavery and systemic discrimination that was only ended de jure in the mid sixties and continued de facto for years after still need helping hand ameliorating by way of preferences.  On this reasoning, diversity is a distraction and mixes things up.

If that analysis is rejected—the legacy argument—then racial preferences serve to help black kids who, as a percentage of the general population, can’t compete succesfully, it seems, for unclear (to me ) reasons, for spots in good professional schools with other kids. If that is what preferences are designed to help overcome, then,  I’d argue, diversity is a pretext for not saying plainly what is being done, just as it was more rationalization than rationale in Bakke, at least the way I recall Bakke

- basman

March 28, 2009 at 7:40pm

"implicit in the conservative affirmative action argument is to deny or, at the very least, not discuss the continuing existence of racism.  thus, the conservative argument that the playing field between races would somehow be "level" if only preferences weren't given in admission, or that the only way in which the playing field is "skewed" is by racial preferences,  denies or omits the continuing existence of racism, which is in reality another way the playing field is skewed, regardless of racial preferences."

Well, your choice of the word "implicit" is telling. You could only say that conservatives "implicitly" argue this, since they rarely actually make the extreme statements you're attributing to them.

Maybe there are *some* people who are against affirmative action and believe racism doesn't exist in America. But why attack that straw man? Why not argue against the more nuanced critics of affirmative action.

Also, FYI, most Americans are against race-based affirmative action. Many of those people aren't "conservatives."

If you want an example of someone who's not a "conservative," doesn't deny that racism exists, and is still against affirmative action -- look at the banner of this blog. You'll find the name of such a person there.

Now, it's a free country, so you can choose to exclusively argue against conservative caricatures if you want, but it doesn't prove much.

- johnalthousecohen

March 30, 2009 at 5:32pm

I have been out of the country (the U.S.) since March 26 without access to the internet, and so I am hopeful that my comments remain timely.  The issues raised in this thread to which I would like to respond are: (1) whether the denial that racism exists or that its legacy explains current racial inequities (for those that don't like the word "pathologies") is a hallmark of contemporary Conservatism; (2) whether it is a distortion to refer to "affirmative action" policies as "preferences"; and (3) whether it is "sophistry" to conclude that affirmative action programs presumptively violate the 14th Amendment of the U.S. Constitution.  I would like to address each of those issues.  To try to keep the comments more readable, I will do so in separate posts.  

Preliminarily, I repeat that I am not necessarily a supporter of "affirmative action" as a matter of policy.  But I think a discussion of it is nevertheless illuminating about racial attitudes.

With regard to point (1), I was responding to McWhorter's discussion of why he is widely regarded as "conservative" even though he does not regard himself as conservative.  I think it is a fair reading of McWhorter's posts that he denies that racism or racial discrimination exists other than anecdotally or marginally. That is why he believes the NAACP has become irrelevant.  Basman, when I refer to the belief that racism exists, I mean neither that the country is systematically racist nor that racism exists only in small "pockets."  I am referring to the belief that racist attitudes pervade large segments of our society and continue to be manifested in discriminatory actions.  I happen to believe, based on my own experience and observations (as well as on data such as that presented by Bond and Jealous) that racism continues to exist in that sense.  But my point is much less ambitious than that.  I am merely saying that, right or wrong, the denial that racism still exists in that sense is associated with contemporary Conservativism, and thus further explains why McWhorter might be widely regarded as "conservative."  Frankly, it surprises me that anyone would regard it as controversial that contemporary Conservatism holds that racism and racial discrimination have been marginalized.  That is part of the rationale behind much of the opposition to "affirmative action" programs.  I hesitate to name people without having transcripts in front of me, but I think it higly likely that opinions to that effect have been articulated by Rush Limbaugh, Sean O'Hannity, Glenn Beck, Pat Buchanan, Bill Kristol, George Will, etc.

Dhurtado

- dhurtado

April 6, 2009 at 3:14pm

With regard to "preferences," Dhauck says "when you apply different criteria among racial groups, in order to increase the representation of one group regardless of its members' ability to meet entrance standards, that constitutes a 'preference' for that group."  Even if that formulation were an accurate characterization of most "affirmative action" programs, I do not agree that it would constitute a "preference" where it would result in, say, 10% (or far less than half) of the student body being black and 90% (or far more than half) of the student body being white.  You might argue that the method for achieving even the 10% is problematic, but I do not think it would be accurate to label the program a "preference" for black students.

That said, I respectfully disagree that most "affirmative action" programs can accurately be described as increasing the representation of a racial group "regardless of the members' ability to meet entrance standards[.]"  What "entrance standards" are we talking about?  The entrance standards of most schools are not limited to grades and test scores.  Schools want students of varying backgrounds, varying work experience, varying financial circumstances, varying geographical origins and, yes, varying racial and ethnic backgrounds.  An overrepresentation in any one of those areas can result in a candidate being denied admission in favor of a candidate with an underrepresented background whose academic credentials may not be quite as good, but nevertheless good enough to predict the candidate's success at the school.  If that constitutes the use of "preferences" then the use of any factor other than grades and test scores to weight a candidate's admission prospects can be called a "preference" for candidates to whom that factor applies.  But opponents of "affirmative action" use the term "preference" only with respect to the factor of racial or ethnic background.

This may seem like a pedantic discussion.  But I think it is important because the wide use of the term "preferences" in public discourse about "affirmative action" feeds the perception (inaccurate in my view) that "affirmative action" results in objectively non-qualified black (or other minority) candidates being admitted at the expense of objectively qualified white candidates.  I am not aware of any evidence that that has happened with any kind of regularity.  But that perception breeds racial animosity.

- dhurtado

April 6, 2009 at 4:12pm

Regarding "affirmative action" and the 14th Amendment:  I did not discuss this topic in my original post because it was not really the subject of McWhorter's piece.  But I am happy to discuss it now in response to some of the posts above.  I agree that, under current Supreme Court jurisprudence, ANY racial classification (whether benign or invidious) by a government body is presumptively a violation of the 14th Amendment and must be subjected to "strict scrutiny."  In my view, however, the Supreme Court has developed that interpretation of the 14th Amendment through pure sophistry.  Ironically, it has been developed and nurtured by Supreme Court justices who regard themselves as "originalists" and as being judicially conservative.  The Court's current interpretation of the 14th Amendment cannot be sustained by an originalist analysis.

As most of you probably know, the 14th Amendment, including the Equal Protection Clause, and the implementing civil rights laws were enacted in the wake of the Civil War and the abolition of slavery.  The 14th Amendment was aimed at prohibiting laws and government actions that would invidiouisly discriminate against blacks.  No one would have seriously entertained the proposition that a law providing for special assistance to blacks violated the 14th Amendment.  Indeed, such a law was enacted -- the law establishing the Freedman's Bureau.  No one thought it unconstitutional, even though, in today's parlance, it clearly involved a "racial classification," or even racial "preferences."  Today's affirmative action programs would not even have implicated the Equal Protection Clause at the time of its enactment.

For a large section of the Supreme Court's history, it limited the reach of the Equal Protection Clause to blacks.  In time, it expanded the reach of the Equal Protection Clause to historically oppressed "insular minorities," such as Hispanics and other ethnic minorities.  Laws that singled out these "protected classes" for disfavored treatment would be subject to "strict scrutiny" and would only be upheld if they were narrowly tailored to achieve a compelling government interest.  The Court later grudgingly deemed women to be a protected class (certainly women are a discrete group that has been historically discriminated against), but nevertheless held that laws discriminating againts women would be subject only to "intermediate scrutiny."  Other "protected classes" were added, e.g., sexual preference and religion.  Discriminatory laws not involving a "protected class" would be subjected to "rational basis" scruitiny, a highly deferential standard that requires the government only to articulate some reasonable basis for the discrimination.  As to the hierarchy of protected classes, blacks and other racial minorities would be at the very top, and white males would be at the very bottom.  (No one would seriously argue that white males are a historically oppressed group.)

But then the Supreme Court performed its magic trick.  Instead of talking in terms of historically oppressed groups or "protected classes," it began speaking in terms of "classifications."  Thus, a "racial classification," even if it is intended to assist blacks, and whether or not it might disadvantage whites, shot to the top of the hierarchy to be subjected to strict scrutiny.  White males became a "protected class," the equivalent of a historically oppressed minority.  Now, a law that is intended to assist racial minorities or women, and that may incidentially disadvantage some white males, is subjected to strict scrutiny, while a law that overtly discriminates against women would be subjected to only intermediate scrutiny. That is perverse.  Even if you think that is the way discrimination law should be as a normative matter, it is a complete misconstruction of the 14th Amendment.

Dhurtado

- dhurtado

April 6, 2009 at 5:12pm