Garrett Moritz has a very interesting post about what he claims is an inconsistency on the right regarding “facial neutrality” vs. underlying reality. He says that conservatives famously (he’s too polite to say “fatuously,” which is what he probably believes) limit their concern to the stated terms of a policy or program and, if such terms are neutral, give it the conservative stamp of approval even if in operation the policy has a disparate and negative impact on minorities. (Garrett and I went around quite a bit on this topic last summer, but I’ll spare you all the links.) But now, he claims, we (well, President Bush, mainly) jump up and down and call the Michigan admission policies quotas even though there is no quota — no reserved number of spots for minorities — and the stated terms refer to race as being only one of several factors taken into account.
Garrett is both perceptive and gracious enough to admit that “[w]ith respect to the Michigan admissions program, the reality is probably something like a quota,” but his real point is that he doesn’t
think conservatives should get to deny the facial terms of the policy and look for some underlying reality when doing so is convenient for them, because that is exactly the sort of reasoning they vigorously rejected in the disparate impact context.
Garrett’s argument appears, well, on its face to be pretty strong, but if you look beneath his words to the underlying reality (!) you’ll discover there’s less here than meets the eye…. There are in fact a couple of problems with it.
For starters, the Michigan policies are not facially neutral at all. They explicitly call — not for “taking race into account,” which after all is an obfuscatory euphemism, but for differential treatment of the races. The undergraduate policy explicitly assigns 20 out of 150 points on color alone; the law school policy requires lower grades and test scores for minorities to be accepted than for whites and Asians. In other words, not simply the practices but the facial terms themselves — “counting race as a factor” — are discriminatory. Not a small matter.
Perhaps more fundamentally, on another level as well the Michigan policies are not analogous at all to the classic examples of conflict between facial neutrality but an underlying reality of disparate impact. Take the mother of disparate impact, Griggs v. Duke Power. There, the employer’s requirement of a high school diploma of all new hires was held to be disparate impact discrimination. But note: there was no conflict between the terms of the policy and its implementation. The policy called for a high school diploma; the practice required a high school diploma.
With Michigan, however, the stated policy — race as one factor among many — is, not to put too fine a point on it, essentially a lie. The actual policy treats race as the deciding factor for a significantly large number of the admitted minorities. To be analogous, Griggs Power Co. would have to have had a stated policy of requiring high school diplomas for all new hires but not really requiring them of whites.
Perhaps Garrett has in mind something like the old “understanding clauses” the Southern states used at one time to keep blacks from voting. On its fact the requirement that new voters had to establish that they understood the state and federal constitutions was neutral, but in practice primarily blacks were asked difficult questions by the registrars and not allowed to vote. But this, I submit, is not a disparate impact situation, because different voters of different races were held to a different standard — not one standard that had a disparate impact.
Having said all of this, however, I will close by observing that I’ve never understood why “quotas” have always been thought to be so much worse than quota-less but clear racial discrimination. What difference does it make if a specific number of places have been reserved for minorities? What is wrong is for any individual to be benefited or burdened by race, and the more who are wronged the worse the policy.
I think you missed (or chose to miss) some of the nuance of my post. My claim is not that the Michigan program is facially neutral (it’s obviously not: as I said in my original post, “Opponents of Michigan’s admissions program have a perfectly decent argument against the Michigan program (race should never be taken into account by a state actor)”). I’m not even arguing that the Michigan program should be upheld. I’m just making a point about logic and argumentation style, and showing how conservatives are using exactly the kind of arguments they decry in the disparate impact context to label the program a “quota.” Why they feel a need to do this is beyond me, but it’s not just President Bush that’s doing this; none other than Prof. Volokh was making this case (on reality vs. facial terms) yesterday on MSNBC. If they can look beyond the face to the reality of the Michigan program and find a racially discriminatory quota, explain to me why the same reasoning can’t be used to look beyond the facial neutrality of statutes that in reality have discriminatory impacts? The argumentation is inconsistent; the consistency is only in the result. It’s only a logical or rhetorical issue, but I find it troubling.
Garrett – I think I do get your point. Not only that, but I appreciate (really) that you’re not denying the Michigan policy is a quota nor are you defending it. You’re saying that, even if it is a quota, on its face it’s not called a quota and that we colorblinders are inconsistent in looking beneath the facial language to the underlying reality. Without rejecting the famous “linguistic turn” of the pomos (at least not here), it seems to me that even we recognize that a thing is what it is, not what it’s called. In short, I don’t think conservatives refuse to look beneath the language; we have no trouble recognizing that the “Understanding Clauses” were discriminatory, despite their neutral language.
I suppose it’s impossible to escape the fact that some expressions inflame and some obfuscate, and partisans use them for those purposes. For reasons that, as I mentioned, aren’t altogether clear to me, even preferentialist liberals claim to abhor quotas, so it’s inevitable that conservatives would call a quota a quota when they see one parading under another name. But I agree with your point: that’s not necessary; it’s enough just to point out that a discriminatory policy is discriminatory. Preferentialists are guilty of the same sin (if sin it is) when they label call policies that are designed to discriminate on the basis of race (treat races differently, hold them to different standards, award bonus points by race, etc., etc.) “race conscious” or “race sensitive.” Colorblinders don’t generally (at least I don’t) object to policies that are “conscious” of race or that are “sensitive” to race; we object to policies that distribute benefits or burdens on the basis of race, i.e., that discriminate.
Thanks, John. But in some sense you too demonstrate the inconsistency I was highlighting in your reply: “[E]ven we [conservatives] recognize that a thing is what it is, not what it’s called.”
Yep, that was my point: conservatives, it turns out, can recognize that “a thing is what it is, not what it’s called” when it suits their ends, but other times (i.e., disparate impact) their mantra has been exactly the opposite: “a thing is what it’s called, not what it is.”
Garrett – Well, we’ve come full circle to where we began, over disparate impact. And surprise! We still disagree! I believe you’re wrong in saying we colorblinders are willing to look beneath the facial language only when it suits our needs. I believe we’re always willing to look at more than labels. Where we disagree is over what we see down there: when you look beneath a neutral policy — like the Griggs requirement of a high school diploma — and see that it has a disparate impact, you call it impermissible discrimination. When we look down there, we don’t (absent evidence that the policy was adopted for the purpose of injuring minorities).
I could add (but then I probably already did, last summer) that for youse guys disparate impact, like all racial classification, is a one-way street: policies that are designed with the intent of having a disparate impact on Asians or whites or Brazillian-Americans, and do, you don’t regard as discriminatory.
In short, I think you’re confusing conservatives’ unwillingness to see discrimination where you do, which is true, with an alleged unwillingness to look beneath the surface when it doesn’t suit them to do so, which isn’t.
I mentioned this over at Garrett’s site–where I hope I didn’t offend him–but really, who is this generic “the right” anyway?
I mean, I seriously don’t get it. My position on this stuff has never changed. If you’d asked me what I thought about the idea of giving people of any race special treatment in 1983, my answer would be exactly the same as it is today.
This debate seems like arguing over the number of angels who can dance on the head of a pin.
I’m not trying to be rude, but really, who are these people who are supposedly arguing for me, or whose arguments I am supposedly espousing?
Mr. Moritz’s observations are as they say in Texas a “dog that don’t hunt.”