One of the recurring defenses of racial preferences is that they are not really discriminatory. To qualify as discrimination, the argument goes, an action has to involve stigmatizing, degrading, or excluding individuals because of their membership in a particular racial or ethnic group.
I have mentioned too many times to link here that this argument is pure sophistry. Its own advocates don’t really believe it; otherwise they could not argue, as they do, that policies that are not racially motivated but that have a “disparate impact” on minorities can be discriminatory. Similarly, few would argue that a quota on Jewish applicants would not be discriminatory if it were motivated only by a desire for greater religious diversity and not by anti-semitism.
But put those objections aside for the moment. A powerful argument can be made — is, in fact, increasingly being made — that racial preferences, benign intentions notwithstanding, in fact do stigmatize the beneficiaries. As Mickey Kaus writes today, continuing his nailing of the New York Times over the Jayson Blair affair,
If affirmative action only gives a “slight boost” to minorities is it really worth all the stigma it generates? The stigma would [seem] to come from the preference itself, not the degree of preference….
… get rid of race preferences and Jayson Blair becomes just an individual screw-up, not something that leaves “a large, looming shadow over an entire generation of young black journalists trying to get their feet in the door at a major newspaper.”
Since it is liberals who have advanced the argument that stigma is the essence discrimination, even liberal judges — I’m tempted to say, especially liberal judges — should have a hard time concluding that racial preferences involve no discrimination.
