What will happen if the Supreme Court rules this term that a desire for a predetermined racial and ethnic mix on campus — a.k.a. “diversity” — does not justify racial and ethnic discrimination? And — a much more neglected question — what will happen if it doesn’t?
If the diversity rationale for discrimination is rejected, it will not immediately and magically end every use of racial and ethnic preferences, but it will end their institutionalization and legitimacy. That is no small thing, and as a result such discrimination will decline markedly. Schools and individual officials who break the law will know that they — and their dollars — are now vulnerable. Schools may experiment with proxies for race, may fiddle with their admissions criteria, and there will be subsequent litigation about all that, if and when the new criteria are too blatantly race-driven. Court decisions are seldom self-enforcing, yet are no less powerful for that. America will be back firmly on the track of viewing racial and ethnic discrimination as shameful, wrong, and illegal.
But if the Court lets such discrimination continue — either by explicitly blessing it or by allowing it so long as the university’s lawyer thinks it can be defended as “narrowly tailored” (as she always will) — then what? Then the discrimination will continue, expand, and never end, that’s what. The scary thing about the diversity rationale is that it will always be available. The old justification for “affirmative action” — that it was needed, temporarily, to make things up for those victims of past discrimination — does not apply anymore.
The far-reaching agenda of the “diversiphiles,” to borrow a neologism from Peter Wood, is laid bare in his important new book, Diversity: The Invention of a Concept. That agenda goes beyond academia to, for instance, the workplace, and everywhere the agenda is pro-discrimination (pro-quota, pro-preference), and anti-merit and anti-assimilation. It seeks perpetual identity politics and a permanent division of America into racial and ethnic enclaves, always race-conscious and oblivious to and contemptuous of what unites Americans. Diversity, Wood observes, is frequently and “unabashedly taught as a higher and better value than equality, freedom, justice, and liberty.” If the Court does not reject the “diversity” rationale in the Michigan cases, we will be taking another giant step down this gloomy road.
(The Center for Equal Opportunity and the Heritage Foundation, incidentally, are hosting a discussion of Wood’s book on March 26, and Wood acknowledges that the “germ of this book was an essay” on NRO.)
Let’s try to imagine a racially just society in the future, and then ask ourselves, how are we going to get there? It is very hard to understand what diversiphiles envision happening in the United States regarding race relations. What they see now, apparently, is a hopelessly racist majority confronted by still aggrieved minorities. They believe that these minorities are entitled not only to protection from discrimination, but to preferential treatment so that no group is “underrepresented” in colleges, employment, contracting, and the like.
Now, presumably these preferences aren’t supposed to last forever. Must they last until the “underrepresentation” disappears? Discrimination or no discrimination, there is no reason to suppose that each demographic group will be precisely mirrored in each walk of life. And the longer preferences are in place, the more entrenched they will become and the harder it will be to end them. The diversiphiles’ lack of vision on race is leading us down a dangerous blind alley.
The anti-preference approach better befits a forward-looking country that resists the notion that one’s rights depend on one’s ancestors. The legal protections offered any race should be the same as those offered all others. This is the prescription that best obeys the first duty of doctors and governments — namely to do no harm. The disadvantaged of all races should be helped, but regardless of their skin color. Pretending that all blacks and only blacks are disadvantaged is unfair to whites and demeaning to blacks, who are not helped by being told that they cannot be held to the same standards as everyone else. We should declare victory in the civil rights war, enforce our antidiscrimination laws, and get on with our national life.
Compare these competing visions, focusing only on African Americans. Is the perpetuation of a double standard in admissions a good thing for them? It creates great resentment among whites and reinforces or creates suspicion that blacks are intellectually inferior. Any black admitted to the University of Michigan is assumed to be less qualified than the whites and Asians there. Blacks are being told that they are not supposed to be as smart as other people, and that America is a hopelessly racist society, so that they cannot meet the same standards as whites and Asians. This is supposed to be good for blacks?
If we follow the competing, anti-preference vision, it will result in a short-term drop in the number of African Americans admitted to the very top schools. But only the very top: Those turned down there will now get into the second-tier schools, and those turned down there into the third-tier schools, and so forth. And now those students, wherever they get in, will no longer have a big affirmative-action asterisk over their heads. As John McWhorter discusses in his recent collection of essays, Authentically Black, the end of preferences will result in a rise in black intellectual attainment, since “there comes a point where a people can only achieve at the same level as the ruling group if the safety net is withdrawn.” McWhorter concludes, “Specifically, my argument against racial preferences is based on a purely logical conviction — that they prevent black students from showing what they are made of, that they dumb people down, pure and simple.”
Editor Karl Zinsmeister and the current issue of his American Enterprise make clear that the proponents of racial preferences would perpetuate a vicious circle: Preferences induce low expectations, which encourages low performance, which then necessitates more preferential treatment. Conversely, if affirmative action is ended, the expectations are raised, performance improves, and there is no longer the need for preferences. Moreover, ending preferences is more likely to force the politicians to fix the failing public schools that shortchange, disproportionately, black and Latino kids, and to force minority communities to address the cultural pathologies — like illegitimacy and the belief the studying hard is “acting white” — that thwart their progress.
It is ironic that, in this debate, it is conservatives who are in a hurry, who want policy to reflect our ideals — not because we are unrealistic, but because otherwise the centrality of race in American life continues its self-fulfilling prophecy.
The current pervasiveness of racial and ethnic classifications and preferences in public life is flatly inconsistent with the letter and spirit of the Fourteenth Amendment’s guarantee of “equal protection of the laws.” The current state of affairs would be very disturbing to anyone — from the Civil War, or Reconstruction, or the Civil Rights Era — whose vision for America includes no color-line.
Conservatives have been frequent critics of judicial activism, but a Court decision declaring that wanting “diversity” is no excuse for racial discrimination would not be activist at all. To the contrary, it would be activist not to strike down Michigan’s policy. Judicial activism is when a judge substitutes his own policy preferences for the text of a law. If he makes up a constitutional prohibition when none exists, then that’s activism, but it is also activism if he or she ignores a constitutional prohibition that does exist.
The reason that we have a Constitution and a judiciary is that from time to time we have to be saved from ourselves — that the political process in a democracy sometimes does things that are inconsistent with certain high and sacred principles so important that we the people have designated them as inviolate. The Court now has before it a classic instance of such a situation. It is scary when state universities and other government agencies start to pick winners and losers on the basis of skin color and ethnic roots, and the prospects are even scarier as we look down the road at an America increasingly multiethnic and multiracial. The Constitution has wisely taken this kind of preferential treatment off the political table, and the Court must honor that wise text.
— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.