Law & the Courts

Campus Racial Preferences, Again

Commencement ceremonies at Harvard University, 2012 (Reuters photo: Brian Snyder)
The rule of law vs. ‘social justice’

It is possible to take seriously the idea of “social justice”?

With the advent of a renewed federal interest in the use of racial criteria in college admissions — the Department of Justice under Jeff Sessions intends to launch new investigations into the question — we arrive, or re-arrive, at what is now a very familiar debate. Those who argue that the policies of our public institutions should be racially neutral have the better end of the argument, and always have. But conservatives should spare a moment to give some consideration to the merits — which are real but not dispositive — of the other side of the argument.

Conservatives are oriented toward procedural justice, as are many left-leaning civil libertarians, at least so far as formal legal proceedings and law enforcement are concerned. Procedural justice demands that there be a neutral set of rules, generally applied, under which persons are (at least in theory; the world is an imperfect place) treated equally irrespective of considerations such as race, religion, or political connections. We are willing to accept occasional unjust outcomes in the service of maintaining the integrity of the procedure, the justice of which is linked to its universal application. To invoke the relevant cliché, we’d prefer to see 99 guilty men go free than see one innocent man convicted, and hence we maintain procedural protections that bias the system in that direction. There is a bias toward acquittal, but that bias works in favor of every defendant. We are much less likely to accept specific unjust outcomes that satisfy procedural demands when the specific injustice runs in the opposite direction, i.e., when an innocent person is penalized.

For the procedurally minded, the question of affirmative action — of well-intentioned racial discrimination — is fairly simple: We prohibit racial discrimination. We prohibit racial discrimination against blacks. We prohibit racial discrimination against Asians. We prohibit racial discrimination against whites. And the idea that we would prohibit racial discrimination against some groups while practicing it against others is, in this view, self-evidently unjust, because it violates the principle that rules ought to be applied in the same way to everybody, that the law should be “no respecter of persons.”

This is not only a question of legal procedure. The libertarian philosopher Robert Nozick argued that the distribution of wealth in any given society at any given point could be understood as just if it could be shown that the relevant property was justly acquired and justly transferred, i.e. that there was no evidence of misappropriation through theft, political repression, etc. Something like this conception of justice in wealth distribution informs the conservative view of the debate over reparations for black Americans, which some progressives desire as an instrument of justice in atonement for slavery and the oppression of black Americans that survived it. The libertarian might be persuaded if a certain 21st century American could show legal title to a piece of property or financial interest belonging to an ancestor of his who was unjustly dispossessed of it. But the reality of black life under slavery and under Jim Crow means that such cases are so rare as to be immaterial to the broader question at hand.

The conservative looks at this and says: “You can’t show me a way in which a specific 21st century American was deprived of property by another 21st century American, or that this happened between their ancestors in such a way as to establish specific culpability. Furthermore, I can show you beyond a doubt that Mr. Kowalski, whose family emigrated here from Poland in 1972, never owned a slave and never had a relative who owned a slave. Why should he be punished for the sins of other people? Why should Mr. O’Leary, whose Irish ancestors were treated shabbily, or Mr. Peshlakai, whose Navajo ancestors were treated abominably? And why should anybody pay reparations to the native-born children of Caribbean millionaires who moved here in 1992?”

We should insist on procedural justice — which is to say, we should insist on the rule of law and on the equality of all people before it.

At this point, the social-justice progressive will start to say something that sounds to the conservative ear a lot like “argle-bargle white supremacy privilege.” The argument breaks down.

But doesn’t the proceduralist argument break down, too? For one thing, the lack of hard evidence that somebody violated the rules doesn’t mean that the rules were followed. For another, the rules were horrifying — they permitted chattel slavery and much else that was cruel and barbaric. It is true enough that the 19th century slave economy was conducted in accordance with the letter of the law. But the Nuremberg Laws were laws, too. The crimes of the Soviet Union were perpetrated under the color of law. So are those of sharia-compliant Islamic supremacists around the world. Relying on procedure for justice assumes a certain general level of decency that had been entirely alien to black Americans until fairly recently in our national history. Some would argue (wrongly, I think, but not absurdly so) that it is alien still.

There is some relief to be found in specificity. Even if we were to take to heart arguments based on “social justice,” the use of racial preferences in college admissions could probably be safely set aside as an instrument of such justice, because it does very little for people who are in fact marginalized. The people who are genuinely suffering in our society are not, for the most part, right on the cusp of being accepted to a top-tier undergraduate program or professional school. The elite obsession with admissions policies at what are, after all, mostly elite institutions is omphaloskepsis-as-policy: The genuinely downtrodden are not applying to study at Haverford College. Upper West Side progressives care a great deal about the admissions rules at Columbia but have relatively little to say about the dropout rate for black men in New York City’s public schools. If “social justice” is to be found in some part in institutional reform, then the institutions that ought to be on our radar are public schools, not Ivy League universities.

We should insist on procedural justice — which is to say, we should insist on the rule of law and on the equality of all people before it. But we ought not allow that insistence to be a bunker into which we retreat when we do not wish to think too hard about the real social and economic distance between black Americans and white Americans. The fact that we passed a new set of rules in 1964 is not in itself an accounting for what came before or an answer to what has happened since.

READ MORE:

The New Racism: Skin Color and the College-Application Process 

What Ivy League Affirmative Action Really Looks Like

Justifying Exclusion through ‘Diversity’

— Kevin D. Williamson is National Review’s roving correspondent.

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