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Besides being unpersuasive, as I'll discuss in a moment, this argument is neither new nor newsworthy. Why, then, does the Post choose to give it such prominent treatment? And why would the Michigan Law Review — from which Liu's op-ed is adapted — allow its prepublication in the Post or have accepted it for publication in the first place, when law reviews are generally fanatical about not publishing material that has been "preempted"? The answer, I suspect, is that this is a last-ditch effort to catch the eye of the judges deliberating on two cases that were recently argued and are now pending decision before the U.S. Court of Appeals for the Sixth Circuit; in these cases, the racial and ethnic preferences used in undergraduate and law-school admissions by the University of Michigan have been challenged. But we conservatives are famous for being paranoid conspiracy theorists, and perhaps I am unduly suspicious of what Liu, the Post, and the Michigan Law Review are up to, so let's proceed on to Liu's argument. The first thing to point out is that it addresses only a tiny piece of the debate over racial and ethnic preferences in university admissions. There is, for instance, substantial controversy over whether admissions discrimination has any significant benefits. The proponents claim remedial, prophylactic, and diversity justifications. But opponents point out that the beneficiaries were born in the mid-1980s, 20 years after Jim Crow was banned; that college-admission officials are the most politically correct people in the world, and thus hardly likely to begin suddenly discriminating against African Americans; and that the existence of educational benefits from skin-deep diversity has little or no credible evidentiary support. Nothing in Liu's article addresses any of this. Nor does Liu have anything to say about the many costs — besides unfairness to individual applicants — incurred by preferences. That is, yes, preferences are unfair, but their critics also point out other costs to affirmative action: that it sets a terrible legal, political, and moral precedent to allow racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves; it fosters a victim mindset; it removes the incentive for academic excellence; is encourages separatism; it compromises the academic mission of the university; 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 us 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. So, even if Liu's one point has some validity, it offers no benefit for racial discrimination and addresses only one of discrimination's inevitable costs. And, indeed, his one point is not valid. It is useful to begin the analysis here by putting the shoe on the other foot: Suppose a school that counted race against black applicants were to argue that, big deal, most of them wouldn't get in anyhow. How persuasive would that be? The victims of discrimination now — like the victims of discrimination in the past — are not demanding a particular admission slot. They are demanding only the right to compete for one, free from discrimination because of their melanin content or ancestry. Furthermore, while it may be true that, in the aggregate, only a relatively small number of slots are taken away from a relatively large number of white (and Asian, as Liu surely knows) applicants, that says nothing about its impact on the individuals involved. Some number of those applicants lost 100 percent of their chances of getting in. It is unfortunately true that "a race-conscious admission policy pits whites against minorities [minus Asians] in a zero-sum game," even though Liu denies it. Toward the op-ed's end, Liu points out — as is typically done by proponents of affirmative action — that preferences are given to athletes and alumni, and on the basis of geography, yet such factors "have never galvanized the kind of outrage often directed at affirmative action," and Liu concludes that therefore the question is "whether unequal treatment based on race should be singled out for special condemnation." Well, like duh, and the answer is, like yes. Discrimination on the basis of skin color is historically, constitutionally, and morally a little bit different from giving someone a preference because he's from Wyoming, wouldn't you say, Mr. Liu? Institutionalized racial discrimination rends the national fabric in a way unlike any other kind of preference. Does that really have to be explained? — Mr. Clegg is general counsel at the Center for Equal Opportunity. |
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Sunday, the front page of the Washington Post's editorial "Outlook"
section featured an op-ed by Washington attorney Goodwin Liu, "
