Surprise! Jesse Jackson Defends Affirmative Action

This country’s commitment to civil rights is “under siege,” exclaims Jesse Jackson, and “right-wing zealots are abuzz with hope that the Supreme Court will turn its back on precedent, history and justice and ban affirmative action altogether.”

More than 100 years ago, the Supreme Court disgraced itself by ruling that legal apartheid–the lie of separate but equal–was constitutional. Almost 50 years ago, it brought that disgraceful era to an end in Brown vs. Board of Education, ruling school segregation illegal. A generation ago, in 1978, it reaffirmed affirmative action in education in the Bakke decision, even while outlawing quotas. Now the question is whether the court will uphold the commitment to diversity or turn back the clock.

I’m always amused by “turn back the clock” references, whoever makes them, implying as they do that history is linear, that there are never any wrong turns that have to be corrected, etc. It is an especially ironic phrase here since the legal theory underlying the Plessy decision is that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. The preferentialist argument today is an unwitting echo of Plessy.

The underlying theory of Brown v. Board of Education, on the other hand, at least insofar as it had a theory, is that official classification by race is on its face a violation of equal protection. This theory was given teeth (many of them subsequently pulled by later Court decisions, some of which are now growing back due to more recent Court decisions) by the Civil Rights Act of 1964, Title VI of which, at issue in the Michigan cases along with the 14th Amendment, says “no person” may be discriminated against because of race in any institution receiving federal funds.

If Jackson’s legal argument is weak, his policy argument is even weaker. He writes, for example, of  “a fundamental distortion about college admissions.”

The distortion is the widespread belief that grades and test scores determine admission to college. The plaintiffs feel aggrieved because they allege that minority applicants with lower grades and/or test scores have been admitted to the school and they have been rejected. They have no right to go to the University of Michigan or its law school. But they allege that their right to equal protection under the law has been violated because advantage has been given to minority applicants.

By now regular readers of DISCRIMINATIONS will have guessed what’s coming next. Yup, it’s the INIQUITOUS UBIQUITOUS NON SEQUITUR:

But the University of Michigan’s programs, like most modern programs, do not admit students solely on the basis of grades and test scores. Rather, complex calculations are made to build a student body that is multitalented and multifaceted. Students with alumni parents gain an advantage over those without. Foreign students from around the world get a boost. Athletes with lower grades and scores are routinely admitted. The plaintiffs in this case no doubt had higher test scores and better grades than many students in these categories–but they raise no questions about them.

As I’ve argued here, plaintiffs raised no questions about preferences to athletes or legacies because we neither have nor need a right not to be discriminated against on those grounds. In short, Jackson is saying, in classic IUNS form, that if discrimination for any reason is acceptable discrimination for all reasons — even race or religion — must be acceptable as well. Baloney.

Jackson also says that “minority students who can get into the university surely are deserving.” That is no doubt true, but it is hardly the question. The question is whether some of them were admitted instead of even more deserving (by whatever non-racial admissions criteria were in place) applicants because of their race. It is true, of course, that no one has a right to be admitted. The right is not to be excluded because of race.

This leaves, finally, the goal of “diversity.” Even if that goal is deemed to be compelling, it does not follow that discriminating on the basis of race is the only, or best, way to achieve it. Selective universities, for example, could reduce or even abandon their selectivity to achieve it, admitting high school or college graduates by lottery. Faced with that choice, I suspect administrations at many selective universities would quickly conclude that diversity isn’t so compelling after all. But if it’s not compelling enough to abandon selectivity, why is it compelling enough to abandon the right against racial discrimination?