Colorblindness Is A Blank SLATE

SLATE has an article on the Michigan cases, “Colorblind in One Eye: The Selective Colorblindness of the Bush Approach to Affirmative Action,” that I found more shrill, patronizing, and polemical — but at the same time less interesting — than most of what appears there. It wasn’t until I read all the way to end that I discovered its author, Elise Boddie, is a counsel with the NAACP Legal Defense & Educational Fund, which is representing African-American and Latino students in the Michigan cases. Well, no wonder it read like a legal brief (and not a very good one). But, hey, SLATE doesn’t pretend to be fair and balanced….

Below I will examine Ms. Boddie’s main arguments, but before turning to them I think it worth noting something odd about the article as a whole: here is a counsel in the most important affirmative action case since Bakke who uses her SLATE-provided platform not to make a case for her clients or for racial preferences in general but to engage in an argument with “the Bush approach to affirmative action.” It’s as though scoring political points is more important than making the strongest pitch for her side in the case. I guess these people, like the Europeans, hate Bush so much they just can’t resist.

So, what does she say? Here we go. From here on she’ll be in italics.

[After announcing his administration's intention to oppose Michigan's admissions policies], Bush took to the airwaves — on Martin Luther King Jr.’s birthday, no less — to condemn the University of Michigan’s modest consideration of race in fostering diversity on the still-overwhelmingly white Michigan campus.

It is a measure of how far the NAACP/LDF has come (or gone) that it finds something especially grating — “no less,” indeed! — that an American president would make a speech opposing racial discrimination on Martin Luther King, Jr.’s, birthday.

What I find interesting about her claim that Michigan’s consideration of race in the application process is “modest” is not so much that it’s wrong — more on that in a moment — but that Ms. Boddie must recognize that most people would be offended if the use of race were described accurately — for example, as “an enormously important factor,” which is what U.S. District Court Judge Friedman concluded after a bench trial of Barbara Grutter’s complaint against the law school. (Grutter v. Bollinger, 137 F. Supp.2d 821, 841 (E.D. Mich. 2001, cited here, p. 2).

Judge Friedman isn’t the only one to have found that Michigan’s thumb on the racial scale has been extraordinarily heavy. Linda Chavez’s Center for Equal Opportunity studied the influence of race in admissions in 47 colleges and universities around the country. (Those findings are presented in a report, PERVASIVE PREFERENCES, which can be found here.) At Michigan, as Ms. Chavez wrote in an OpEd last month,

we discovered that the median SAT scores for black students who were admitted to the school were 230 points lower than for whites. What’s more, their high school grades lagged nearly a half point (on a four-point scale) behind those of whites. From the data we obtained under a Freedom of Information request, we calculated that the odds of being admitted if you were a black student with the same qualifications [grades and test scores] as a white applicant were 174-to-1.

“Modest” indeed.

But the deeper problem with Bush’s approach isn’t just that he opposes the consideration of race as a means to the end of racial diversity. It’s that he is also selective about his colorblindness — calling for the elimination of the slightest disadvantage to whites, while at the same time ignoring entrenched and systemic disadvantage to African-Americans and other racial minorities. Bush’s upside-down logic calls to mind the wise words of Justice Harry Blackmun who remarked, “In order to get beyond racism, we must first take account of race. There is no other way.”


True, but there are other, better ways “to take account” of race than continuing to use it as a basis of rewards and punishment. Isn’t that how minorities became disadvantaged in the first place? Bush may remind Boddie of Blackmun’s comment, but using racial discrimination to get beyond racial discrimination reminds me of the now infamous quote from Vietnam about destroying the village in order to save it.

Bush’s allegedly colorblind approach to affirmative action … won’t significantly affect the representation of whites on many campuses. At the most selective institutions, the elimination of affirmative action would have an acute impact on the admissions of African-Americans and Latinos but would likely increase the chances of white admissions by just 1.5 percent. In other words, although there is a widespread perception that masses of white students are losing their seats because of affirmative action, in reality, race-conscious policies have a negligible impact on whites. As a matter of basic math, affirmative action cannot begin to account for the number of unsuccessful white candidates, because the sum of minority students admitted under race-conscious policies is dramatically less than the number of white candidates denied admission.

This is one of several straw man (or person) arguments, since almost none of the criticism of racial preferences — and certainly not Bush’s — is that it excludes masses of whites. The criticism is that racial discrimination is unfair to the individuals who suffer from it, and to the society that tolerates it. Ms. Boddie prides herself on not being colorblind, in either eye, but she has a particularly crippling kind of moral astigmatism that prevents her from seeing individuals at all. She can only see groups. Note well the following:

Yet opponents still equate affirmative action policies with “discrimination against whites” and draw audacious parallels between such policies and the racist practices of universities during the era of de jure segregation. The University of Michigan is at least 80 percent white, so it isn’t credible to claim that it or its affirmative action policy discriminates against whites as a group.

I’m not aware of anyone who says that state-enforced racial preferences are as bad as state-enforced segregation, but never mind. What is truly “audacious” is the claim that discrimination against individuals doesn’t count. Only discrimination against “groups” — and even then, only if its impact is severe enough to be measured statistically — is all that matters. Anyone who doubts that the preferentialist vision would undermine traditional anti-discrimination laws need look no further than Ms. Boddie’s refreshingly frank exposition of the principle underlying preferentialism.

Further, while most of the public scrutiny concerning affirmative action has been on the qualifications of African-American and Latino students admitted to Michigan, it is scarcely mentioned that other white students are also admitted with SAT scores or GPAs lower than those of the plaintiffs (and lower than those of rejected minority applicants).

If true, this could be interesting. What are the numbers? It would be quite useful, and I suspect revealing, especially in light of the Center for Equal Opportunity’s findings mentioned above, to see how many rejected minority applicants had grade/test scores higher than how many accepted white or Asian students.

UPDATE (2/1/2003) – An article appearing in the New York Times Week in Review on Feb. 2 revealed that, in assembling its class for the fall of 1999, the Michigan law school

accepted only one of the 61 Asian-Americans, or 2 percent, who were ranked in the middle range of the applicant pool, as defined by their grades and test scores, according to court filings. The admission rate for whites with similar grades and scores was 3 percent.

But among black applicants with similar transcripts, 22 out of 27, or 81 percent, were offered admission.


Nor is much attention paid to the other racialized dimensions of Michigan’s admissions policy that favor whites. The preference given to the children of alumni (including, incidentally, Patrick Hamacher, one of the plaintiffs challenging Michigan) disproportionately benefits whites, as does the enhancement given for candidates from Michigan’s predominantly white Upper Peninsula, and the points awarded based on the quality of the candidate’s high school and curriculum.

You knew it had to come sooner or later, and here it is: the inevitable Invidious Ubiquitous Non Sequitur. A policy that “disproportionately benefits whites,” such as legacy preferences or preferences to residents of the “predominantly white” Upper Peninsula, is now “racialized” and presumably discriminatory. But one that overtly gives preferences to minorities, that benefits minorities only and not disproportionately, is not discriminatory. (Hello! Orwell, are you watching this?) The underlying “principle”? If any kind of discrimination is acceptable, racial discrimination is acceptable.

Opponents of affirmative action have spent the past two weeks repeating what seems to be their main, patronizing argument: that race-neutral admissions are better for racial minorities because affirmative action stigmatizes its beneficiaries as inferior (while at the same time denying their own agency in perpetuating such stereotypes). But the “stigma” is one-sided. It isn’t applied to legacy admits; and it isn’t applied to white Anglo Saxon Protestant men admitted to universities before the 1970s. Until affirmative action kicked in, these groups had a virtual lock on admissions at selective institutions because white women, blacks, Asians, and Latinos were either excluded from selective institutions altogether or were admitted in token numbers. Yet one never hears that this de facto affirmative action has “stigmatized” white males.

Again, this simply isn’t true. At most elite campuses legacies are widely recognized as having been admitted under lower standards than everyone else (except preferentially admitted minorities).

The tragic irony is that the 14th Amendment, the basis of the Michigan lawsuit, was conceived to rectify the enormous burdens of African-Americans who had just emerged from slavery. Now it has been twisted into a weapon against policies that have modestly uplifted blacks and other racial minorities. The Supreme Court’s jurisprudence no longer recognizes the difference between policies that benefit and those that harm historically oppressed groups.

Here we go again with groups. Insofar as the above is true, it’s because the principle embodied in the 14th Amendment is that the entire society, including especially “oppressed groups,” benefit when “no person” can be discriminated against because of race. I don’t think there can be any dispute about that, or about the fact that the Supreme Court has consistently held that the anti-discrimination principle applies to everyone, not simply the group whose oppression gave rise to the 14th Amendment. Ms. Boddie obviously wishes that weren’t so, but wishing doesn’t make it so.

It is unfortunate that so much energy has been spent trying to eradicate programs that seek to bridge the abyss between this country’s promise of opportunity and the depressing reality that we still live in a society in which one’s life chances, opportunities, and experiences are significantly shaped by race.

What exactly is “this country’s promise of opportunity”? I believe it is the promise that every person will have an equal opportunity “without regard to race, creed, color, or national origin,” as stated in the executive orders on affirmative action issued by both President Kennedy and President Johnson.

Ms. Boddie and the NAACP/LDF quite obviously believe something else.

Say What? (3)

  1. cut on the bias January 31, 2003 at 11:55 am | | Reply

    Deconstructing a shrill anti-Bushite

    John Rosenberg at Discriminations masterfully deconstructs an article by one of the NAACP attorneys representing minorities in the University of

  2. jeanne a e devoto January 31, 2003 at 3:42 pm | | Reply

    But the “stigma” is one-sided. It isn’t applied to legacy admits

    Erm. Did this author miss the entire 2000 election season, when Bush’s status as a legacy admission was used to stigmatize (oh, that word!) his intelligence? Over and over, it was brought up, with the clear indication that he wasn’t smart enough to get into Yale – because he got a preference for being the son of an alum.

  3. Cobb February 2, 2003 at 2:47 am | | Reply

    well if it applies to george bush, it must apply to everyone.

    clearly the stigma didn’t kill his ability to be president. stigma is dismissable when one has power and inevitable when one doesn’t.

    it’s not about stigma, it’s about resentment.

Say What?