As he explains in today’s New York Times Magazine, Jeffrey Rosen just lectured Justice Sandra Day O’Connor about why he has changed his mind and come to support racial preferences. (She and Justice Breyer accompanied justices of the Supreme Court of India, to whom Rosen had been scheduled to speak. Seeing her in the audience, he “abandoned [his] notes and chose instead to appeal to O’Connor in personal terms.”) Lucky her.
Rosen admits that ever since he studied Bakke in college he had opposed affirmative action “as a constitutional matter.” Later, he writes, after becoming a law professor,
I found that my constitutional doubts about affirmative action were joined by pragmatic ones. Race, I learned from classroom experience, is an imprecise and often unsatisfying proxy for intellectual diversity. I’ve had a few moments in class when the unique perspective of an African-American student was invaluable to the discussion — like the time when a student in a criminal-procedure class described the indignity that he experienced after being pulled over for “driving while black.” But there have been many other moments when the views expressed by African-American students on both sides of the political spectrum were indistinguishable from the views of other students. Also, there are many subjects — tax law, for example, or organic chemistry — in which the connection between racial and intellectual diversity is hard to fathom.
Although Rosen writes here that he’s only “had a few moments in class” when viewpoint diversity seemed to have any correlation with race, he does not appear to be a reliable historian of his own erratically shifting attitudes. Writing in The New Republic two years ago (link requires subscription), Rosen had a very different response to that one “driving while black” comment in class:
The comment changed the way the class and I thought about the constitutionality of racial profiling. And it illustrates a proposition that now strikes me as obvious: There can be a meaningful correlation between racial diversity and diversity of viewpoints in the classroom. Before I started teaching, I was more skeptical of this correlation–and expressed some skepticism in these pages. And, unfortunately, some judges, who have not experienced the classroom dynamic I’ve described, remain skeptical. At the end of March, a federal district judge in Michigan, Bernard A. Friedman, struck down the University of Michigan Law School’s affirmative action program, noting that “the connection between race and viewpoint is tenuous, at best.” If the Supreme Court ultimately accepts this reasoning and forbids affirmative action in all public universities, it will not only be substituting its untested judgment for the classroom experience of teachers across the nation. It will also enmesh the courts in an impossible effort to disentangle the relationship between racial diversity and viewpoint diversity–a relationship that, as recent voting rights decisions show, is best defined by the political process. (“For Race in Class: Without Merit,” THE NEW REPUBLIC, May 14, 2001, p. 20)
Rosen’s history of Rosen’s thoughts on affirmative action may be flawed, and that should lead careful readers to evaluate his other arguments with caution. Nevertheless, Rosen’s writing on preferences is, on occasion, refreshingly honest. Today’s article, for example, is titled “How I Learned to Love Quotas.” He doesn’t even attempt the ritual dance of distinguishing the commitment to a “critical mass” or a 20 point bonus from a quota. Moreover, he has long admitted that “the real reason” for “diversity” has nothing to do with the pious justifications for it that are routinely trotted out.
Of course, the real reason the Texas faculty, like most law faculties, supports affirmative action isn’t primarily to encourage “viewpoint diversity”…. The faculty simply thinks it would be inconceivable to have a virtually all-white student body in the state’s leading law school, excluding the state’s two most numerous and most politically powerful minority groups from more than token representation. (“The Day the Quotas Died,” THE NEW REPUBLIC, April 22, 1996, p. 21)
Rosen’s own conversion to preferences also had little to do with the rising chorus of claptrap about “diversity.” He has become a devotee of preferences, even of quotas, because of his even deeper devotion to meritocratic standards. Really.
… I became convinced that selective universities can’t achieve colorblindness, diversity and high admission standards at the same time. They can achieve only two out of the three goals. For the most part, schools would prefer to choose standards and diversity, using racial preferences to create a diverse class while keeping standards relatively high. But if the courts order colorblindness, America’s finest public and private universities won’t hesitate for a moment in choosing diversity as the second goal, allowing rigorous admissions standards to go out the window.
This, Rosen argues, is what happened in Texas, California, and Florida with their “Top X” plans, which he believes lowered academic standards across the board in order to maintain diversity. And,
If the Supreme Court bans affirmative action throughout America (as it could, in effect, if it rules broadly against Michigan), even the best private universities that receive public funds, like Harvard and Yale, will feel similar pressure to de-emphasize objective predictors of academic performance, like grades and test scores, in favor of softer proxies for racial diversity
One can find this argument cropping up earlier in Rosen’s writings than today’s article suggests. For example:
Color-blindness, for all its moral and political appeal, is not really a practical option….
To make matters worse, affirmative action bureaucracies and beliefs are so entrenched that a sweeping color-blind law might lead to a renewed attack on objective standards. When Congress forbade race-norming in the Civil Rights Act of 1991, for example, many employers dropped their aptitude tests altogether, or set the cut-off points for all candidates at the lowest possible levels: they were more concerned with keeping up appearances than obeying the spirit of the law. The desire to “look like America,” in short, has become too much a part of our social fabric to be suppressed by a legal rule. (“Neither Color-Blindness Nor Quota-Mongering,” THE NEW REPUBLIC, May 8, 1995, p. 20)
Thus, oddly, Rosen has now become a quota-mongering preference pusher precisely because he is a meritocrat. Since most elite institutions would abandon standards before abandoning diversity, Rosen believes that a racial double standard, requiring less from blacks and Hispanics than from whites and Asians, will do less damage overall to high standards than holding everyone to the same standard. His stance thus eerily mirrors that of elitist Southern conservatives fifty years ago. They too responded to a demand for racial equality, in Brown, by asserting that it was “not really a practical option,” that racism and segregation were “so entrenched” that enforcing colorblindness would destroy educational standards. They were willing to bend a little and accept token integration as a gesture of compliance, just as Rosen favors a racial double standard as doing less damage to standards than a vigorous enforcement of the anti-discrimination principle would do.
What is both remarkable and depressing is the low regard for equality among today’s liberals, most of whom look at these issues through Rosen-colored lenses. The diversiphiles (Peter Wood’s wonderful term) are eager to jettison the non-discrimination principle in order to produce proportional representation of selected groups. Rosen rejects proportional representation, but in the end he is equally willing to abandon colorblindness in order to achieve student bodies with the highest possible grades and test scores at elite institutions.
Let us hope that Justice O’Connor was as disappointed by this argument as I am and that she was not persuaded that the core American value of treating every person “without regard” to race, creed, or national origin should weigh less on the Constitutional scale than high SAT and LSAT averages at selective colleges and law schools.
UPDATE – For different criticisms of the Rosen article, see this post on All Deliberate Speed, an interesting blog devoted to civil rights from a liberal perspective. It’s author very generously says of DISCRIMINATIONS that my “comments are thoughtful (in fact, if you haven’t visited the blog–and I admit, I am a too-infrequent reader there myself–you should definitely head over; while I typically disagree with what’s over there, I always find the comments well-reasoned and thought-provoking).” Based on what I have seen so far, I am happy to say the same thing about ALL DELIBERATE SPEED.