The Feb. 10 issue of The Weekly Standard has two articles on affirmative action, one by Stanley Kurtz and the other by Charles Krauthammer, that must be read, and should be read in tandem. Alas, both articles require a subscription to read online; if you don’t have a sub (or access to Nexis, where both can already be found), you’ll have to read the paper versions.
Although Kurtz acknowledges that a Supreme Court decision against preferences in the Michigan cases will not resolve the issue and in fact “will only touch off yet another round of debate and reform in a continuing battle,” he is most eloquent, and persuasively frightening, about what the future will hold if the Court affirms the principle that diversity can justify discrimination.
If the Supreme Court now unambiguously affirms diversity as a justification for affirmative action, its decision will do far more than simply freeze existing preferences in place. It will unleash diversity as never before. Once diversity has acquired unchallenged legal standing, advocates of affirmative action will inevitably seek to extend its range. If diversity can justify racial preferences in university admissions, why not in the selection of jurors? What about preference programs for federal policymakers or even legislators? (Quota systems for female legislators have already been floated in Canada, Europe, and India.) Should there be preferences for females in the high school chess club, or for males on the cheerleading squad? Pro-androgyny feminists have already called for preference programs for male employees at day-care centers. And won’t Muslim immigrants soon be coming into their own as a victimized minority entitled to preferences? Once the principle of diversity has been affirmed, there are no necessary limits, and every demand for inclusion can be adjudicated. Republicans might even get into the act, with suits to force political diversity onto colleges and universities dominated by Democrats. The prospect of lawsuits to impose political diversity suggests what a mess we’ll be in once the Supreme Court grants clear legal standing to a doctrine of group rights.
Krauthammer agrees that “racial preferences of any kind are not only destructive of the American ideal of equality but devalue minority achievement and poison ethnic relations” and that Michigan’s admissions policies are “deeply offensive to any notion of equality.” He questions, however, “whether we really want to win the argument at its sharpest and most comprehensive–the total abolition of affirmative action–in the Supreme Court.”
I used to think so. I’m no longer sure that is the way we should want this issue resolved. I never thought I’d find myself talking about the wisdom of the Bakke decision. Not the logic, mind you. The logic was an abomination. The Court ruled every-which-way, inventing unintelligible distinctions between quotas and goals and timetables and the mere consideration of race as a “plus factor.” In effect, it simply took a dodge, leaving the door open for every jurisdiction and organization to work out its own affirmative action schemes. Yet in retrospect there was a social benefit to this messiness. That cacophonous ruling created a marketplace of affirmative action schemes. Bakke did not foreclose the issue. It tried to contain but not abolish the allocation of preferences. As a result, it allowed society a quarter of a century to duly experiment and see the results. As social science, the experiment has been a success. Affirmative action has been tried and found wanting.
Krauthammer compares preferences today with state laws restricting abortion just before Roe v. Wade. Just as the political process was eliminating anti-abortion restrictions, he argues, the political process today is eliminating preferences.
We are at the same stage today on affirmative action. Public opinion and the democratic process, if allowed to operate, are on their way to abolishing this singular violation of the American ideal of equality. We’re winning. It is perhaps better not to win it all too soon, too fast in the Supreme Court, by taking the issue off the table of public opinion and out of the democratic process. It might be best for the Court to follow the middle position advanced by the Bush administration, which would strike down Michigan’s system but leave to the people the more general question of diversity and the use of preferences to achieve it.
He says this even though he fully recognizes that
there is a fundamental difference of rightness between the Supreme Court’s ruling on Roe and its potential ruling on the Michigan cases. The constitutional right to an abortion is a pure invention, a fiction conjured out of a “penumbra, formed by emanations” of the Constitution. In other words, out of whole cloth. On the other hand, any Court ruling against racial preferences clearly would be grounded in the plainest meaning of the Equal Protection Clause and of the founding ideas of the republic.
Kurtz, on the other hand, believes, citing polls, that preferences are so widely and deeply unpopular that he’s not too worried about a potential political backlash if they are barred by the Court. He could possibly live with a narrow decision, tossing the Michigan policies but stopping short of invalidating all diversity-justified preferences. What he thinks we couldn’t live with, at least not well, is a Court opinion legitimizing diversity-based discrimination.
The Supreme Court, then, finds itself facing a choice not between simple abolition of affirmative action and mere confirmation of the status quo. What the Court will really do this summer is create a framework for the next phase of our cultural and political struggle over the meaning–and even the legitimacy–of liberal democracy. We stand at a fork in the road. On the one hand, the Court can set aside the diversity rationale, thereby affirming classic liberalism and initiating a series of arguments over the practical application of race-blind principles. On the other hand, the Court can sanction the doctrine of diversity, and thus well and truly open Pandora’s Box. Once diversity has acquired unquestioned legal sanction, we will be forced to confront what, to some degree, is already playing out: a creeping constitutional civil war–a battle for the soul, and even the existence, of liberalism–whose outcome is impossible to foresee.
Go read both articles and see what you think.
ADDENDUM – I forgot to make a point that I think is worth adding. Krauthammer recognizes that his reluctance to short-circuit the political process, even to enforce an important principle, runs smack into Brown v. Board of Education, the precedent with which no one can argue. He attempts, somewhat feebly, I believe, to distinguish Brown.
The one exception is, of course, Brown v. Board of Education. But it is not a justification for judicial social crusades. Brown was right but Brown was entirely sui generis. Its uprooting of social norms and precedents should never have been taken as a model because Brown was unique–not because of the moral force of unshackling a subject people, but because of the constitutional imperative to undo disenfranchisement. Generally speaking, popular and legislative will should determine the great questions of the age. However, when the question is the disenfranchisement of one section of the citizenry, you have a Catch-22. The disenfranchised cannot express their popular will and initiate change until they have been enfranchised–but they cannot be enfranchised until that change has already taken place. Blacks were denied the very power to abolish their political disabilities by the fact of their political disabilities. Which is why the courts had to intervene.
Brown, of course, was not about disfranchisement. The principle implicit in it is the same principle involved in the Michigan cases, whether or not discrimination on the basis of race can be justified. Indeed, one could argue — and I hereby do — that the great failing of Brown is that it did not forthrightly affirm the principle of officially neutral colorblindness but rather was decided pretty much the way Krauthammer would have the Court decide the Michigan cases. It was its “with all deliberate speed” temporizing, in fact, that made possible the massive resistance that Krauthammer fears now.
UPDATE (2/6/03 3:15PM) – Erin O’Connor, who more than deserves the lavish praise Stanley Kurtz of National Review Online bestowed on her here, agrees with Kurtz that
the debate about preferences is not a struggle between reactionary, inherently racist adherance to the status quo and progressive, multicultural commitment to an inclusive future, as proponents of preferences would have it, but, rather, a debate about what America is, what it ought to be, and, more crucially, whether the America of the future will be recognizably related to the America that was conceived in the Declaration of Independence and the Constitution.
Couldn’t have said it better myself if I tried, which, come to think of it, I have many times. (Tried, that is.)
Krauthammer is apparently unaware that the Supreme Court had issued a disfranchisment equivalent of the Brown case 15 years before.
Lane v. Wilson, 307 US 268, was decided in 1939 and contains the straightforward language, “The [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.”
Yet Lane was basically never enforced and had little social effect. Had it been enforced, the entire history of the country would have been very different. After all, it was the Voting Rights Act of 1965, not the Civil Rights Act of 1964, that killed Jim Crow.
I think the one-man one-vote decisions of the Warren Court should be mentioned here. That, too, was a matter of political disenfranchisement that couldn’t be fixed through the political process.
I’d suggest that the Civil Rights Act vs the Voting Rights Act should not be seen as either/or, pace the previous post.