Discriminations

Writing in the Washington Post today ("It's The Law, Not The Judge"), Jeffrey Rosen writes that

Mark Tushnet of Georgetown University Law Center argues in a ...convincing new book, "A Court Divided" [that] the Rehnquist court has actually supported the views of a narrow majority of the American people, rather than thwarting them, in all the most controversial cases of the culture wars, involving affirmative action, gay rights and access to early-term abortions.

I have not yet read Tushnet's book, but I wonder what evidence he presents, or what other evidence Rosen may be thinking of, that "a narrow majority of the American people" support racial preferences.

I don't have time now to cite all the polls to the contrary, but I do have time to say that I am not aware of any such evidence. If this claim were true, then proponents of preferences would be eager to place the matter on the ballot in liberal states such as California, Washington, and Michigan. Instead, they have fought tooth and nail to keep it off ballots, and everywhere it has appeared (California and Washington) they have lost.

I am aware of a poll or two, and one vote (in Houston), where people supported "affirmative action," but they may well have been thinking of the original versions of affirmative contained in the two presidential executive orders, which required employers to take affirmative action to

take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. [Emphasis added]

This is the opposite of what "affirmative action" has become in practice.

UPDATE

PollingReport.Com presents the findings of a number of polls on affirmative action.

A good example of a question I regard as worthless was asked in a poll conducted by Gallup from June 12-June 18, 2003. The question: "Do you generally favor or oppose affirmative action programs for racial minorities?" The result? 49% favored; 43% opposed. Whites opposed by 49% to 43%; blacks favored by 70% to 21%; Hispanics favored by 63% to 28%.

Here is a much more useful question from that same poll:

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.

69% of all respondents favored merit only compared to 27% who favored taking race into account. Whites favored merit by 75% to 22%; Hispanics favored merit by 59% to 36%; blacks favored considering race, but only by 49% to 44%.

An NBC/Wall Street Journal poll conducted January 19-21, 2003, asked the following:

As you may know, the U.S. Supreme Court will be deciding whether public universities can use race as one of the factors in admissions to increase diversity in the student body. Do you favor or oppose this practice?

65% opposed using race; 26% supported using it.

Polls frequrently find support for "affirmative action" as long as it is not explained that racial preferences are involved. Thus the same NBC/Wall Street Journal poll just cited also asked the following question:

Now let me read you two brief statements on affirmative action programs, and ask which one comes closer to your own point of view. Statement A:  Affirmative action programs are still needed to counteract the effects of discrimination against minorities, and are a good idea as long as there are no rigid quotas. OR, Statement B:  Affirmative action programs have gone too far in favoring minorities, and should be ended because they unfairly discriminate against whites

When presented without preferences in the same poll to the same respondents, now 49% favored keeping affirmative action; 44% favored ending it.

Is this the narrow majority support cited by Mark Tushnet and Jeffrey Rosen? I hope not, since the same poll reports clear opposition to the very preferences that are at the core of affirmative action admissions, as virtually all polls report. One more: a Time/CNN poll also conducted in mid-January 2003 asked:

Do you approve or disapprove of affirmative action admissions programs at colleges and law schools that give racial preferences to minority applicants?

54% disapproved; 39% approved.

I've polled myself, and I disapprove of the Rosen/Tushnet assertion.

UPDATE II [29 March]

I've still not read all of Mark Tushnet's book, A COURT DIVIDED, but I did buy it today, read the chapter on race and affirmative action, read the introduction and conclusion, and scanned some f the rest.

I did not find any detailed or specific discussion of public opinion that would support the conclusion Jeffrey Rosen mentions, but Tushnet clearly does come close to arguing that the Rehnquist Court's decisions mirror popular opinion. For example, in the Introduction he asserts that conservatives lost "rather consistently on the social issues -- abortion, gay rights, and affirmative action."

The reason the Court's economic conservatives won and its cultural conservatives lost is simple. In the arena of politics, economic conservatives were winning and cultural conservatives were losing. The economic conservatives dominated Congress and the presidency, making help from the Supreme Court less important to their cause, though they received some. The cultural traditionalists, on the other hand, needed major assistance but received little, as they were forced repeatedly to retreat. So the patterns discernible in the Rehnquist Court's decisions reproduced the patterns occurring in American politics generally. [p. 10]

Whatever can be said in support of this thesis generally, it strikes me as quite wrong regarding affirmative action. Opponents of affirmative action (not all of whom are "cultural conservatives" or "cultural traditionalists") were quite successful in the political arena during the Rehnquist years. The only major defeat they suffered was at the hands of the Rehnquist Court, in Grutter.