One of my many failings was my failure to attend a recent lecture at the UVa law school by Carl Cohen. In a country that had retained its senses about civil rights Cohen, a long-time philosophy professor at the University of Michigan, would be a hero. As it is, he is merely a hero to those of us who believe that civil rights are incompatible with racial preferences.
Cohen always has been, and somehow remains, a bona fide liberal. As the chairman of the ACLU in Michigan and a national board member in the 1970s when that organization, and many (soon, most) other liberals began to abandon the principle of colorblind equality, Cohen was a firm and principled critic of that disastrous turn. He has written extensively and persuasively in opposition to preferences, and in fact is largely responsible for forcing to University of Michigan to release the information on which the Gratz and Grutter cases were based.
I’m very sorry I missed his talk (I neglected to read the calendar of activities at UVa for that week), but an unsatisfactory discussion of it can be found here, a site with news of the UVa law school. (Thanks to Stuart Buck for calling this site to my attention.)
The title given to the report on Cohen’s speech reveals the quandary produced when students, and even faculty, at elite universities are exposed to a critic of preferences who is obviously not a racist — or in this case even a hated Republican. The title? “Liberal Case Against Affirmative Action Looks a Lot Like the Conservative Case.” Indeed, whoever wrote this report was apparently so flustered that he or she even misstated the Gratz/Grutter result in the Supreme Court, writing of “the Supreme Court’s 5-4 decision in favor of the University of Michigan in the Gratz and Grutter cases.” (Michigan lost Gratz and won Grutter.)
I suppose its easier for those who’ve been taught that preferences are on the same pedestal formerly occupied by motherhood and apple pie to believe that when a liberal criticizes preferences he sounds like a conservative, rather than vice versa, which is philosophically perhaps more true.
The article mentioned only two questions from the floor, but they are revealing. A third year law student (!) asked “why Cohen would say affirmative action is bad for blacks when the black community overwhelmingly supports it….” First, it’s not at all clear that “the black community” (if there is a “black community”) does in fact support affirmative action, at least as those programs actually operate. Surveys generally find that most people favor “affirmative action” if it’s not defined or defined in smarmy tones of helping minorities, etc. But most respondents oppose preference programs, and blacks are divided. For example, last June Gallup asked this question:
Which comes closer to your view about evaluating students for admission into a college or university — applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted (or) an applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?
Nationwide, respondents opposed racial preference by 69% to 27% (non-hispanic whites by 75% to 22%), but blacks were divided more evenly than many, and especially our “third year law student,” would suspect: 44% favored merit to 49% who favored preferences. This result is not at all unusual. In a 1995 poll, for example, the Washington Post reported that “Nearly half of all African Americans interviewed said they opposed affirmative action programs giving preference to minorities.” The results are consistent over time. Other examples:
Approximately four out of every five likely voters in Florida (83%) – including nearly the same percentage of blacks (79%), Hispanics (80%) and women (82%) – support a law that would prohibit government discrimination and preferential treatment on the basis of race, color, gender, ethnicity or national origin in public contracting, employment and education. The Florida poll is consistent with a 1997 Zogby International survey of the nation which showed four out of five Americans (83%) – including almost the same percentage of blacks (79%) – supporting the elimination of preferences.
One could hope, if not think, that a third year law student at a top law school, especially one with an apparently strong interest in this area, might be familiar with this data. More troubling, however, is the implication in this student’s question that everyone should automatically agree with whatever “the black community” thinks is good for itself. If this student, once he becomes a lawyer, ever finds himself representing a black client and a judge asks why the client should be allowed to continuing doing X, let’s hope our UVa grad can come up with a better argument than “because he wants to.”
But enough on the one student question that was reported. The one reported faculty question was no better: law professor Anne Coughlin asked Cohen “if he considered favoritism for legacies, the children of graduates, also objectionable.” Those of you who are veteran readers of this blog will recall my rants (too many to link, but here are the first two: first, second. For more just search on “sequitur.”) Like others who fall into this fallacy, Prof. Coughlin seems to think that if discrimination on some grounds are allowed (say, legacy status, athletic ability, etc.) then discrimination on any grounds should be allowed. But this is not surprising coming from Prof. Coughlin. Veteran readers with excellent memories will recall having encountered the good professor before, in her remarks at the “candlelight vigil” following the report of the alleged attack on Daisy Lundy:
Anne Coughlin, a law school professor who is white, confessed her reluctance to speak to the mixed-race crowd.
“I was afraid,” Coughlin said, “and I am afraid to come here tonight and speak to you about this crucial matter.”
She added that she was worried “white folks will think that I’m blowing this out of proportion” and that blacks would say she was the wrong person to speak.
“My fears are produced by racism,” Coughlin said. “My fear has made me an ignorant person.”
The AffAct issue is a constitutional one that concerns procedures, and only indirectly goals. The procedural problem is one of consistency: the equal protection clause was the basis of the Civil Rights Act of 1964 which outlawed discrimination on the basis of several categories of class, including race and sex. Discrimination violates equal protection.
But what do we get if we say that “equal protection” does not apply “equally” to all Americans–besides, of course, a logical solecism? For one thing, we get Thurgood Marshall’s contention in his dissent in Bakke, that equal protection (i.e., the 14th amendment) was intended to help blacks, not whites.
Okay. Either constitution protections apply to all Americans equally, or they don’t. AffAct says they don’t.
What AffAct does affirm is a form of “social justice” that is historically marxist rather constitutional: the notion that only the “downtrodden” deserve justice, because the “dominant” classes are the cause of inequalty, and therefore they do not deserve “equal justice,” but rather punishment. That is why exclusion of whites and males by AffAct doesn’t bother its adherents: they are more-or-less conscious advocates of a zero-sum revenge game.
This marxist assumption was at the bottom of the Civil Rights Law of 1964 when it affirmed that only some groups were “protected” by statutes outlawing discrimination, and not others. The main excluded group was American citizens who were “white” and “male.”
In short, civil rights legislation has from the beginning played nonsense games with equal protection–demanding “universal” application when it suits lawmakers and the federal missions agencies whose regulations enforce the specifics of this legislation–while on the other hand demanding “selectivity” in order to reward one group and punish another.
This is not justice, this is tyranny, and the main tyrant is the U. S. Federal government.
Michael wrote: “What AffAct does affirm is a form of “social justice” that is historically marxist rather constitutional: the notion that only the “downtrodden” deserve justice, because the “dominant” classes are the cause of inequalty, and therefore they do not deserve “equal justice,” but rather punishment. That is why exclusion of whites and males by AffAct doesn’t bother its adherents: they are more-or-less conscious advocates of a zero-sum revenge game.”
How does that work for other races or preferred groups? By that I mean, what is the liberal justification for preferences for some minorities (blacks and hispanics) but not for other minorities (Asians).
> Coughlin said. “My fear has made me an ignorant person.”
Far be it from me to disagree with her!