Since joining the Center for Equal Opportunity in 1997, I’ve always received a steady stream of invitations to participate in debates around the country on affirmative action, but the stream has become a torrent in recent weeks. It’s not because I’ve suddenly become a sought-after celebrity, but rather because the issue is now red-hot, with the Supreme Court scheduled to hear oral arguments Tuesday in the cases challenging the University of Michigan’s use of racial and ethnic admission preferences.
I always enjoy these debates. Frequently they are hosted by student organizations, like the Federalist Society, which are invariably polite and accommodating, and it is fun to visit universities and cities across the country. It’s still a variegated nation — diversity! — with an invocation beginning the proceedings in Montgomery, Alabama, and a pre-noon open bar in New Orleans. The accents change, too, from Minneapolis to New York to Houston.
The audiences are generally polite, too. I get called a racist now and then, usually by an obnoxious white kid trying to prove something or other, but so far I’ve not experienced the threats or shouting-down attempts that Linda Chavez or Ward Connerly sometimes get. Maybe that’s because, as a white male Southerner, it is clear that, whatever my many failings, at least I’m not a race traitor.
I also enjoy the debates because I never lose. This is not, I hasten to add, because of my rhetorical brilliance, but simply because the antipreference arguments are overwhelming, even foolproof.
My approach is simple and unflashy. Step one: Make clear that the original meanings of affirmative action — taking proactive, positive steps to root out and prevent the reoccurrence of discrimination, and “casting a wide net” in recruitment — are not at issue: Only affirmative discrimination is. Step two: Point out why the other side’s favorite tropes — unqualified applicants aren’t accepted, race is just one factor, alumni’s children and athletes also get preferences, quotas are already illegal, and discrimination still exists — are all red herrings. Step three: Reason that, therefore, the only issue is whether the benefits of affirmative discrimination outweigh the costs. The supposed benefits hinge on the “remedial” rationale and the “diversity” rationale, neither of which is persuasive (the former because, for instance, the beneficiaries are students born in the 1980s, twenty years after the 1964 Civil Rights Act, and the latter because it relies on stereotypes).
The list of costs, on the other hand, is long and largely irrefutable: 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 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; it encourages a scofflaw attitude among college officials; it mismatches students and institutions, guaranteeing failure for many of the former; 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. Q.E.D.: Racial preferences ought not to be used.
Another reason I enjoy the debates is because my opponents — usually law professors or other academics — says the darndest things. Consider just one panel, earlier this month, at Georgetown University. The emcee, a university official, casually noted in her introduction that the school “will proceed with its affirmative action policies no matter what the Supreme Court does.” The school might as well fire its general counsel, then, who must be cringing. My principal opponent that day, a professor at Harvard Law School, said that the use of preferences would need to continue “until a man from Mars comes and sees no evidence of past discrimination.” At least that long, no doubt. The representative from the Mexican American Legal Defense and Education Fund (MALDEF), trying very hard to show that Latinos are entitled to preferences every bit as much as blacks, said that both groups, after all, became Americans unwillingly, thus equating the slave trade with the Mexican War. And Georgetown’s dean of undergraduate admissions noted with a chuckle that his school was “thinking about affirmative action for men,” since that’s what’s now needed for “balance, which is what this is all about.” Here that, Justice Ginsburg?
I’ve compared notes with other antipreference speakers, and we’ve all noticed that generally the other side will rely for its argument on the asserted pervasiveness of racism — “white privilege” is the phrase du jour — in the United States. For instance, one of my frequent sparring partners likes to tell the story of how a clerk in Garfinkel’s once followed her around, suspecting her of shoplifting. Humiliating, I’m sure, but quite beside the point. Such “societal discrimination” is not relied on by the University of Michigan because it has long been rejected by the Supreme Court as insufficient to justify the institutionalization of racial and ethnic preferences — and rightly so. If someone is mistreated by Garfinkel’s, then she should sue Garfinkel’s, as she can under the civil rights laws. But it makes no sense to right this wrong by discriminating against a medical school applicant at some distant university. Indeed, if the aim is to change racial attitudes and attack racial stereotyping, then having a second, lower academic standard for blacks is dramatically counterproductive.
What the University of Michigan, like nearly all schools, is left to rely on instead to justify racial preference is the “diversity” rationale, the tenuous argument endorsed by Justice Powell in his 1978 Bakke opinion that students learn much better and much more if their environment is a predetermined racial and ethnic mix. In his wonderful new book, Diversity: The Invention of a Concept, Peter Wood discusses how, pre-Bakke, the left relied very little on the diversity justification for preferences, including it as an afterthought when used at all. Old habits die hard, I guess.
It is, in any event, no wonder that my debating opponents don’t want to assert that random observations by students in classrooms and conversations in dorm rooms have such “compelling” importance that they trump the ban on racial discrimination in the Constitution and the 1964 Civil Rights Act. On one of the few occasions when I felt that my opponent gave as good as he got, I consoled myself afterwards by remembering that this law school professor had begun his presentation by conceding that the University of Michigan would almost certainly lose because the diversity argument — which he, too, regarded as an also-ran theory — was so unlikely to persuade a majority of the Supreme Court.
Evidence that the diversity argument is not really taken seriously, even by the academy’s proponents of racial and ethnic preferences, can be found outside the debate hall, too. In The American Prospect this month, Harvard’s Randall Kennedy admits as much, and concedes that the diversity argument “is, after all, only a contingent, pedagogical hypothesis”; he prefers “a commitment to social justice.” Likewise, the Society of American Law Teachers took out an add in the Washington Post this weekend, titled “Reaffirming Affirmative Action,” that argued, “`In order to get beyond racism, we must first take account of race’” — a remedial justification — and said nothing about the dubious educational arguments that supposedly make the diversity justification so compelling.
The Supreme Court justices, then, can reject the University of Michigan’s arguments, confident that in its heart of hearts even academia knows the diversity rationale is just a make-weight, after-the-fact justification for the racial and ethnic balancing that it wants, but knows that it has no real legal justification for. If the Court does so then schools across the country will be forced to stop judging students by the color of their skin.
— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.