Theodore Shaw Responds, And A Response

On March 2, 2003, I posted this criticism of a then-recent OpEd in the Washington Post by Theodore M. Shaw, general counsel of the NAACP Legal Defense and Education Fund, which I reproduce to save you the trouble of going back to read it and then coming back here:

Theodore Shaw, associate director-counsel of the NAACP Legal Defense and Education Fund, argues that because “Race Still Matters” it should be cemented into the Constitution so that it will matter forever. [NOTE: This link is no longer operative. See below.] Along the way, he offers yet another C’est Moi! justification for racial preferences: that without them, he would not have been accepted at Wesleyan or Columbia Law School. (I discussed another example of this justification here.) Indeed, he goes so far as to describe Bakke as a “devastating loss” for blacks, presumably because it barred both hard quotas and compensatory discrimination. (But Justice Powell’s “plus factors” to promote diversity “snatched victory from the jaws of defeat.”)

One can readily understand why Mr. Shaw regards his own success as compelling justification for the racial discrimination against someone else required to achieve it, but there may be some benefit in those of us without his interest examining the argument. Let us begin by assuming, with him, that he would not have been accepted at Wesleyan or Columbia without the racial preference he received, although in fact that may not be true. (In the absence of preferences, after all, some minorities are still admitted into even the most selective schools.) Still, there is no reason to assume that it was Wesleyan and Columbia or nowhere. Since Wesleyan found him “qualified,” he presumably would have been accepted elsewhere, and since it sounds as though he was poor he would have qualified for financial aid. Indeed, he might have wound up exactly where he is, for even the NAACP LDF doesn’t require graduation from elite colleges and Ivy League law schools of its employees. Nor is there any reason to assume that the white’s, Asian’s, or other non-preferred minority’s place Mr.Shaw took would have led a life of sloth and indulgence, contributing nothing comparable to Mr. Shaw’s contribution to the national well-being. I mean no disrespect to Mr. Shaw when I say that, placing his success and contributions on one side of the scale and the principle of non-discrimination on the other, there seems to be no compelling national interest in sacrificing the latter for the former.

Moving beyond self, Mr. Shaw repeats the canard that racial preferences do not involve discrimination because most whites, Asians, etc., who are rejected from selective schools are not rejected because of race.

[President Bush’s] mischaracterization of the selection process encourages white students who are not admitted to the school of their choice to blame affirmative action. Perhaps it is easier to attack the minuscule number of minority students admitted than to accept rejection. In most cases it is the end result of intense competition for limited slots (at the University of Michigan, more than 25,000 applicants seek about 5,000 freshman slots), coupled with a host of other demands ranging from recruitment of residents from the rural part of the state to preferences for children of alumni. These factors, ostensibly race-neutral, usually benefit white students.

Thus we are back with IUNS, the Invidious Ubiquitous Non Sequitur holding that so long as some people receive benefits that are not based on racial criteria it is legitimate, perhaps even mandatory, that other people receive benefits based on their race.

The place to make this argument is not in the Supreme Court. It is in Congress and the states, urging them to repeal all civil rights legislation barring discrimination based on race, and perhaps the 14th Amendment as well.

Mr. Shaw presumably just ran across this post, and yesterday he posted the following comment:

You badly misrepresent what I have said and what I believe. I do not know [if] you do so intentionally, but if you act in good faith I will gladly engage with you in discussion. If you intentionally distort what I have said, you do so to pursue an ideological agenda which is shameful. The ball is in your court.

Well! (As George Will would say). Mr. Shaw makes it difficult to address the ball that he claims to have hit into my court because he does not say where or how I misrepresented his views. Still, I detest misrepresentation, and take charges of it very seriously. If I have indeed misrepresented something I would be happy (oh well, at least willing) to retract it, and I encourage Mr. Shaw to submit an additional comment setting forth his views, which should indicate how he believes I have misstated them.

Unfortunately, the link has expired to his old OpEd in the Washington Post (“Race Still Matters,” March 1, 2003, p. A19). I have just purchased a copy from the Washington Post archive ($3.95, in case you’re interested), which gives me the right to access it online for a limited time (can’t recall now whether it’s 30 or 60 or 90 days). I have sent an email to the Post asking whether it is possible (and, if so, permissible) for me to share the link to this article with others. If it is, I’ll post it in an UPDATE below. (Those of you with access to Nexis will be able to find it.)

Meanwhile, let me say simply that, re-reading it, I don’t see the basis for a charge of misrepresentation. What I do see is a fundamental disagreement over whether racial discrimination is a desirable, useful, effective, even (in an ideal world) legal remedy for racial discrimination, but I’ve said all along, and hereby repeat, that decent and reasonable people can disagree about that.

I did have some sport with Mr. Shaw in my post for offering his own success, which he claimed would not have been possible without affirmative action, as evidence for the goodness of racial preferences. I’ve never met Mr. Shaw, but his OpEd was appealingly modest. I’m sure he believes affirmative action is good policy because of all the other people it helped, not simply because it helped him succeed, but I don’t believe anything I wrote said or implied he was not sincere in that belief. And it was he, after all, not me, who introduced his own story as evidence:

I was at the U.S. Supreme Court when the Bakke decision was announced in June 1978. I was a second-year law student at the time, and I had followed the case with great personal interest. Affirmative action had helped open doors for me, beginning as a high school student from a public housing project in the Bronx. In the aftermath of the Rev. Martin Luther King Jr.’s assassination, I participated in a leadership project established for black students by the Archdiocese of New York. This program unlocked the door to Wesleyan University, which was seeking qualified minority students and providing the financial and academic support to help them succeed. Wesleyan led to Columbia Law School, where affirmative action again aided my admission.

….

For a generation of us who grew up in poor and segregated black and Latino communities, affirmative action opened opportunities to attend our nation’s best institutions and exponentially increased our life chances. A few of us would have made it anyway, but I don’t claim to be one of them.

Of course there were other points in my original post besides what I labeled Mr. Shaw’s “C’est Moi!” defense of racial preferences, but, after re-reading his piece I don’t think it was unfair of me to say that he preferred a Supreme Court opinion that would have protected racial preferences forever. I would actually be relieved to learn that is not the case.

As long as I’ve paid for the privilege of re-reading Mr. Shaw’s OpEd, I think I’ve earned the right now to criticize a couple of things I omitted before. First, Mr. Shaw makes the astounding (at least to me) argument that criticism of racial preferences is unjustified because most whites rejected from the University of Michigan were not rejected because of their race. So what? Exactly how much racial discrimination does there have to be in order for it to be wrong? I’ve dealt with this argument before, at length, here, here, and here. As it happens, the first of those posts was in response to an identical argument from another NAACP LDF attorney that appeared two months before Mr. Shaw’s OpEd. Allow me to quote myself (and others) from the second of those posts:

One common argument that preferentialists make is that racial preferences do not involve discrimination because most whites, Asians, etc., who are rejected from selective schools are not rejected because of race. Typical is the following argument (which I criticized here) made by an NAACP Legal Defense Fund attorney:

At the most selective institutions, the elimination of affirmative action would have an acute impact on the admissions of African-Americans and Latinos but would likely increase the chances of white admissions by just 1.5 percent. In other words, although there is a widespread perception that masses of white students are losing their seats because of affirmative action, in reality, race-conscious policies have a negligible impact on whites. As a matter of basic math, affirmative action cannot begin to account for the number of unsuccessful white candidates, because the sum of minority students admitted under race-conscious policies is dramatically less than the number of white candidates denied admission….

Yet opponents still equate affirmative action policies with “discrimination against whites” and draw audacious parallels between such policies and the racist practices of universities during the era of de jure segregation. The University of Michigan is at least 80 percent white, so it isn’t credible to claim that it or its affirmative action policy discriminates against whites as a group.

….

This argument, a foundation of the preference principle, has far more radical implications than is generally recognized, for it in effect redefines discrimination as something that applies only to groups. To say that preferences cannot be discriminatory because the University of Michigan is still 80% white is to say that discrimination against individuals doesn’t count, until and unless it is massive enough to affect the statistical representation of the racial or ethnic group to which they are said to belong. Do “civil rights” groups really want to go there?

Forget civil rights groups. The University of Michigan itself makes this same argument. The following is from a Q&A re University of Michigan Admissions Policies on a Michigan web site with its legal materials. [At least it was there, when I discussed it here and here. Now it has apparently been “revised” and “archived.”]

Q: Does the University’s consideration of race hurt a white student’s chances of getting into the University?

A: No. The numbers of minority applicants are extremely small compared to the numbers of white students who apply to the University. The Law School, for example has for the last 10 years had an average offer rate of 29 percent for Caucasian applicants, and 26 percent for African American applicants. Out of the fall 2002 entering class of 352, only 21 are African American. Similarly, of the approximately 24,000 applications received each year for admissions to the College of Literature, Science & the Arts, only about 1,800 come from underrepresented minorities. It is not mathematically possible that the small numbers of minority students who apply and are admitted are “displacing” a significant number of white students under any scenario.

William Bowen and Derek Bok, in their book “The Shape of the River,” look at the nationwide statistics concerning admissions to selective universities. They determined that even if all selective universities used a race-blind admissions system, the probability of being admitted for a white student would go only from 25 percent to 26.2 percent.

What Michigan, and Bowen and Bok, are actually saying here is that there is no discrimination because there’s not much of it, and what there is affects only some individuals, not their groups. Their argument is that discrimination against individuals doesn’t count. The only discrimination that matters, that is in effect even worthy of being called discrimination, is against “groups” — and even then, only if its impact is severe enough to make a group “underrepresented.”

I encourage you to read that whole post (again, it’s here, and no, I didn’t quote all of it here!), because it goes into some detail on the question of just how much discrimination results from racial preferences. You probably will not be surprised to learn that preference-produced discrimination against whites, Asians, and other non-preferred minorities is much more substantial than preferentialists usually acknowledge. For example, in my post just cited (and in this one and this one), using numbers and assumptions provided by the University of Michigan in its own defense, I point out that in one year the UM law school, in building a class of 400 students, denied admission to 124 applicants based solely on their race, and the undergraduate college excluded 300 applicants solely because of their race.

If it could be demonstrated with a similar degree of accuracy that 124 black or Hispanic law applicants and 300 black or Hispanic college applicants were denied admission to one institution because of their race, would the NAACP LDF say with equal equanimity, “Oh well, that’s not very much”? If the same number of applicants were excluded because they are Jewish, would the American Jewish Committee be defending that institution? I doubt it.

Finally, in my earlier post criticizing Mr. Shaw’s OpEd I also neglected to criticize another part of it much in need of criticism. Regarding the Bakke decision, he wrote:

By a 5 to 4 vote, the Supreme Court rejected arguments that the 14th Amendment, primarily enacted to bring black Americans to full and equal citizenship, allowed colleges and universities to take deliberate steps aimed at remedying the effects of centuries of slavery and segregation. The court called all discrimination not specifically attributable to an individual defendant “societal discrimination,” for which, no matter how lamentable it was, no one was responsible and for which there was no remedy.

I have not read Bakke recently (and, since I’m now on the road and, at the moment, using a friend’s dial-up connection where I have to pay for time online, I’m not going to re-read it now), but my memory of it is quite different from what Mr. Shaw writes above. (I am not, however, accusing him of “misrepresentation,” but merely of a flawed interpretation.)

I don’t recall anything in Bakke that barred all “deliberate steps aimed at remedying the effects of centuries of slavery and segregation.” Insofar as it barred anything, it only barred some deliberate steps, steps that involved engaging in racial discrimination to cure racial discrimination. (Although many historians, following C.Vann Woodward’s The Strange Career of Jim Crow, reject the claim that there were “centuries … of segregation,” I will not quibble with that here since there clearly were centuries of discrimination.) Nor did Bakke come anywhere close to stating or even implying that there was any discrimination, “societal” or otherwise, “for which there was no remedy.”

The fact that racial discrimination is not allowed as a remedy to racial discrimination in no way means no remedies are allowed, Mr. Shaw’s overheated statements to the contrary notwithstanding. His misstatement of what Bakke said, and by implication what any future opinions re-invigorating the principle of colorblind equality would mean, is further sad evidence of the degree to which current civil rights leaders have come to equate “civil rights” with “racial preference.”