Aw Schucks! Read This Article!

The Chronicle of Higher Education has just published a terrific, impressive article by Peter Schuck, a law professor at Yale whose new book, Diversity in America: Keeping Government at a Safe Distance, is about to be published by Harvard University Press. The Chronicle site requires a subscription, but the Schuck article alone is worth the price of admission. Or you could go to a, you know, library.

It’s one of those articles that’s too “thick” (as the nouveau anthropologists would say) to summarize, and it contains too many “money quote” passages to quote them all. So, find some way to read it. Until then, here’s something. Schuck argues:

  • Michigan’s hope that Powell’s opinion in Bakke to protect its preferences “is probably in vain.” Schuck doubts whether that opinion is “authoritative precedent,” but even if it is Michigan’s programs, at least the undergraduate one, “probably cannot satisfy his criteria for ethnic and racial preferences” and “probably are unconstitutional.”

    They define diversity too narrowly and arbitrarily. Like most such plans, for example, they do not give preferred status to Arab students, members of fundamentalist Christian groups, Hindu people, or others who would diversify the student body no less than the black and Hispanic students preferred by Michigan…. Then, too, the bonus points that Michigan’s undergraduate plan awards to members of its favored minority groups amounts pretty much to a quota — as the court is likely to conclude.

  • “Ethnic and racial diversity that springs from authentic, spontaneous, voluntary social interactions can have great social value,” but mandating it by law promotes group conflict, undermines its value, and is bad policy.
  • “In truth, plans like Michigan’s are not really about diversity, but are instead crude efforts to remedy the continuing social disadvantages suffered by black people, with certain other favored groups thrown in.” Thus the credibility of universities is compromised by their use of a diversity rationale.
  • The “nightmare scenario” of resegregation need not and probably would not occur. Redistribution among a state’s campuses would occur, but that is probably a good thing.
  • Affirmative action does not attack the real problem, the inferior schools many minorities attend. “Quite the contrary, it simply creates a cream-skimming, zero-sum competition among institutions for the relatively few academically qualified minority students — while producing frustration and bitterness for the much larger group of beneficiaries who are ill prepared for the top institutions, and for the even larger group whose races are not preferred.”
  • Preferences are very bad policy for public institutions, even in the (unlikely) even they are deemed constitutional. Schuck reluctantly would allow them, however, under strict conditions, at private institutions.

    When government speaks, it speaks authoritatively for society, and it inevitably coerces those who disagree with it. That is the nature of public law, for better or worse. In speaking authoritatively, even well-intentioned government-sponsored affirmative-action programs communicate some troubling ideas. They signal that our society thinks it is just and wise to group people by race, to treat those groups monolithically, and to allocate precious resources and opportunities accordingly. Such programs also suggest that we hold equal treatment and individual merit as secondary, dispensable ideals, that the preferred groups cannot succeed without special public favors, and that society thinks we can assuage old injustices by creating new ones.

    Because I oppose those ideas, I consider even private affirmative-action programs problematic — but less so than government-sponsored programs. Private institutions speak only for themselves, and they do not generally coerce others. One who opposes a voluntary practice can avoid its burdens more easily than one who opposes a mandated one. A liberal society that values autonomy and diversity has a powerful interest in allowing private individuals to pursue their own ideals and to constitute their communities as they wish.

    For that reason, a private institution that wants to prefer black students over higher-performing white students, perhaps because it values that kind of diversity more and academic credentials less, should be free to do so — even though it could not legally do the reverse and prefer white students over black students. I may view that preference as profoundly misguided, but I cannot say — and the law should not say — that that choice is unacceptable.

  • Any such preferences must not “disadvantage vulnerable minority groups” and must be publicly and honestly disclosed, which is not being done now. Indeed, “many institutions have opted for obfuscation and outright deception rather than candor.”

I myself am not persuaded by Schuck’s tolerance, reluctant though it is, for preferences in private schools. Such institutions are not, after all, “individuals,” and although Schuck mentions Title VI (which bars discrimination by institutions receiving federal funds) in passing, he does not provide an analysis of why such discrimination should not be regarded as, well, discrimination. Maybe he does in the book.

Despite the above reservation, let me repeat my strong recommendation that everyone find a way to read this article.

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  1. diablogger.com May 5, 2003 at 3:20 am | | Reply

    http://www.diablogger.com/archives/000267.html

    Reuters news service dialed up Marvel Studio’s CEO Avi Avrad after the X-Men 2’s debut this weekend for a quote.

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