Yesterday I wrote (here) about a new policy in Wisconsin that requires all state universities to consider the race of all applicants (in a “holistic” manner, of course), a change in policy that was said to be the result of the Grutter decision, which itself allowed but did not require institutions to consider race.
It seems to me, however, that there are some problems here. One of them is that all these campuses have very clear statements of policy that would seem (if, of course, one takes the words seriously) to preclude extending any admissions preferences based on race. Here’s the policy, for example, from the University of Wisconsin–Platteville:
Discrimination against Students
Inn accordance with state and federal laws and University of Wisconsin System policy, no student may be denied admission to, participation in or the benefits of, or be discriminated against in any service, program, course or facility of the University of Wisconsin-Platteville because of the student’s race, color, creed, religion, sex, national origin, disability, ancestry, age, sexual orientation, pregnancy, marital status or parental status.
One would think that making it easier for some students and harder for other students to gain admission or to receive financial assistance based on their race would be a clear violation of this policy.
Here’s another problem. The La Crosse Tribune, citing “underrepresentation” numbers, defends the “holistic” efforts to enroll more blacks by arguing that “the American dream of a good education and a good job should not be limited based on race and income.”
Excuse me, but why not? At least if there’s nothing inherently wrong about discriminating on the basis of race.
Liberals frequently stumble over the necessity of arguing that what they see (often correctly) as the results of society-wide racial discrimination are wrong, but that there’s nothing wrong with society-wide racial discrimination in the service of such ephemeral goals as “diversity.”
I dealt with a typical version of this argument about three years ago (here) in a post on the “Caste Benefit Analysis” of Owen Fiss, an influential pro-preferences Yale law professor, whose comments are even more interesting post-Grutter than they were when written because he found the “diversity” rationale for racial preferences “wanting.” Allow me to quote myself, discussing (and quoting again) Fiss’s argument.
Owen Fiss, an influential Yale law professor who has always defended preferences, found the diversity rationale “wanting” as recently as 1997. Fiss, too, found the eradication of caste to be the only compelling justification for the discrimination inherent in preferences.
The diversity rationale seems shallow and lacking the compelling quality needed to justify the hardships created by preferential treatment. It has little appeal outside the university context — for example, among production workers or guard-rail contractors. Even in the university, diversity seems an incomplete justification, since it doesn’t provide any basis for choosing what kinds of diversity we should favor. Why, we are left to wonder, should we give a plus to blacks but not to members of religious groups that might be underrepresented?
….
Rather than thinking of affirmative action in terms of diversity or compensation, we should see it as a structural remedy for a structural problem: as a means of eradicating the caste structure that now mars our society and that has its roots in slavery and the segregation of Jim Crow. By giving blacks a greater share of the privileged positions of society, affirmative action improves the relative position of the group that lies at the bottom of the heap. It aims to end the racial ordering of American society. (Owen Fiss, “Affirmative Action: Beyond Diversity,” Washington Post OpEd, May 27, 1997)
This is not the place to argue with Fiss’s failure to explain what precisely is bad about “the racial ordering of American society” if discrimination on the basis of race is not wrong in and of itself. (If I were to make that argument, I would begin by observing that society has to be “ordered” some way or other. If racial discrimination is no different from or worse than other forms of discrimination — class, geography, where your parents went to school, etc., etc. — then why is racial ordering worse than other forms of ordering? Most of us instinctively know that it is, because we have internalized the very principle that Fiss et. al. would have us discard — that every person has a right be treated “without regard” to race.)
I wonder if Fiss found the sanctification of “diversity” in Grutter as “wanting,” “shallow,” “incomplete,” and “lacking the compelling quality needed to justify the hardships created by preferential treatment” as he had in 1997.
Once one discards the principle that discrimination against any individual on the basis of race is wrong, it becomes hard to give a principled reason why a “racial ordering of American society” is worse than any other ordering.
There is some authority for John’s argument.
An unpublished decision in the Third Circuit, in an opinion by Judge Brooks Smith, precluded a university from relying on an “affirmative action” exception to sex discrimination prohibitions when its own nondiscrimination policy prohibited sex discrimination, without any caveats.