More Nails in Preferential Coffin – Two recent developments suggest that the tide of racial preferences continues to go out. The first is a lawsuit the indomitable Center for Individual Rights has just filed against HUD and the EEOC for employment discrimination, and the second is “Diversity Perversity,” an article in The American Prospect questioning the uncritical devotion many liberals display towards affirmative action, an article that is as noteworthy for its source as its argument.
The CIR’s lawsuit, Worth v. Martinez, threatens to do to the employment practices of the federal government, the nation’s largest employer, what its suits against the University of Michigan’s preferential admissions policies may do to college admissions (depending on what, if anything, the Supremes do with the latter). Stanley Kurtz has an excellent summary of the issues in the case, and I urge everyone to take a look at it here. The CIR also has a very impressive and informative discussion of the case on its web site, here.
The CIR and Kurtz discussions are so complete that a summary here would be redundant (though that hasn’t stopped me in the past, and I may well revisit this case later), but I can’t resist making one observation. Despite the protests of many defenders of preferences that they do not believe in quotas or proportional representation, CIR’s evidence demonstrates that the EEOC and those administering employment at HUD believe that “underrepresentation” of any group except white males is not evidence of discrimination; it is discrimination. (In a crucial distinction, the CIR makes clear that its complaint is not with the vast and pervasive “underrepresentation” of white males in the federal workforce but with the discriminatory policies and practices responsible for it.)
Now for another nail lets turn to TAP. Ms. Kaminer, a board member of the ACLU and senior contributor to TAP, is too smart and independent-minded to fit neatly into politically correct liberal boxes, and this article is no exception. She criticizes, for example, the liberal
assumption that the use of group preferences is cost-free and that the socially desirable goal of racial and ethnic diversity can be met without harming individuals or violating fundamental liberties. Racial (or sexual) profiling is, at the very least, problematic, whether it’s employed by bigoted police officers or well-meaning educational administrators.
Although it may be going too far to say that criticizing such an article, and one appearing in a liberal publication no less, is looking a gift horse in the mouth, it may not. At any rate, even if what follows is mere nit-picking around the edges of an article whose substance is sound, the picking of nits is one of the many things blogs are for.
A couple of Ms. Kaminer’s comments indicate how hard it is even for liberals who are troubled by preferences to criticize them forthrightly. For example, she writes:
Because affirmative action pits the rights of disadvantaged groups against the rights of individuals (and equality against liberty), the problems it poses are not easily or peacefully resolved.
But preferences do not pit “equality” against liberty. They pit one version of equality — equality as proportional representation — against both liberty and other versions of equality — equality as non-discriminatory treatment, equality as equal opportunity but not necessarily equal results.
Moreover, to speak of “the rights of disadvantaged groups” as opposed to “the rights of individuals” assumes, first and foremost, that groups have rights — as groups, not as individuals who have individual rights not to be discriminated against because of their membership in a group. Most critics of preferences reject the idea of group rights. Everyone should. But assume for a moment (but only for a moment) that groups do have rights. What are they? Isn’t some undefined right to proportional representation the only right a group could claim that is not already covered by the individual rights of its members not to be discriminated against because of their membership? Preferences, in short, all but require a belief in group rights, and in turn believers in group rights find it hard to criticize preferences on principle.
Ms. Kaminer also writes:
Considering the arbitrary nature of admissions decisions, with or without racial preferences, it’s hard not to sympathize with the majority view. Before colleges and universities employed racial preferences, they relied on class preferences, favoring graduates of particular schools or the children of alumni, as advocates of affirmative action regularly point out. When I entered law school in 1972 (just before the implementation of federal equal-education guarantees), graduate and professional schools openly maintained generous affirmative-action quotas for men. These generated virtually no opposition from conservatives.
But what Ms. Kaminer describes here was not affirmative action for men. It was simple discrimination (combined, of course, with less interest then than now among women for what were then regarded as “non-traditional” careers). Law schools, and others, practiced neither “soft” affirmative action for men, i.e., target outreach, etc., nor “hard” affirmative action, i.e., goals/quotas/targets for specific numbers of men. It is true that conservatives were slow to condemn this sort of simple, everyday discrimination, but then so were liberals.
Finally (at least for this installment), Ms. Kaminer writes that
the fallacy underlying much conservative opposition to sexual or racial preferences is the assumption that without them life would be a meritocracy….
I can’t speak for all conservatives (in fact, I’m not sure I can speak for any conservatives, since I’m not sure I am conservative), but I don’t share that meritocratic assumption, and I suspect there are many (other?) conservatives who don’t. True, I happen to like merit in many situations, but it is never a constitutional imperative. In my view, most organizations should be able to discriminate on almost any grounds they choose, except race, religion, sex, ethnicity (with some obvious exceptions such as theological seminaries).
Those are, or should be, constitutional imperatives.
