UVa Debate On Affirmative Action

On Wednesday wife Helene, daughter Jessie (home from Bryn Mawr on “Fall Break”), and I went to hear a debate on affirmative action at the University of Virginia law school, sponsored by the student Federalist Society and others, between Roger Clegg of the Center for Equal Opportunity and Prof. Gordon Hylton of the UVa law faculty.

Roger said the sorts of things you’ve been reading here (you HAVE been reading here, haven’t you?), and so was of course overpoweringly persuasive. Prof. Hylton, however, was a bit of a surprise. First, although a defender of race preferences, he vehemently criticized “diversity,” both practically and legally. That limited his defense of preferences to some combination of compensation for past injustice (which is what he emphasized) or possibly avoidance of an all white or heavily white elite. That was a bit surprising coming from a law prof inasmuch as the Supremes have clearly and consistently ruled out compensation as a justification for dispensing benefits or burdens based on race.

Prof. Hylton repeatedly dismissed the “without regard” principle (judging every individual without regard to race, creed, or national origin) as having any real relevance to the debate over preferences because it had been violated for over three hundred years of slavery, segregation, and discrimination.

This is a familiar argument. If the “without regard” principle can be seen as a wall preventing government from tampering with race, religion, or ethnicity — making those categories strictly off limits for government favor or disfavor — then Prof. Hylton’s argument strongly implies that that wall has been breached so long and so often that it does not still stand. Just as undeterred trespassers can take adverse possession of (formerly) private property, the “without regard” principle, in this view, has been trampled into oblivion.

This argument has some weight, but only if one is willing to carry it. What I mean is that it is coherent only if one if willing to admit that the “without regard” principle is dead. Although some defenders of preferences are willing to do that, and offer “diversity” — with its requirement of permanent regulation of the racial and ethnic (and religious?) market — as a replacement principle, many are not. Many, like Prof. Hylton, regard race preferences as a temporarily necessary exception to a still valid principle, much like censorship in wartime.

Wars, however, end. Even cold wars. How, Roger Clegg asked Prof. Hylton, will you know when it is safe to honor the non-discriminatory principle again? Prof. Hylton didn’t know, but said he’d know it when it was time.