On Slate, Yale law professor Kenji Yoshino offers a “progressive” argument for affirmative action that he thinks should appeal to conservatives.
Believing that the “conservative argument” against racial preferences “needs to be taken seriously” and recognizing that traditional progressive justifications of “diversity” and compensation for past mistreatment are either “misguided” or simply unpersuasive to conservatives, Prof. Yoshino proposes a tack taken by Justice Stevens’ dissent in Wygant v. Jackson Board of Education (which held that, facing layoffs, a collective bargaining agreement could not be set aside in order to retain minority teachers instead of more senior white teachers).
In defending an affirmative action plan that sought to retain minority teachers over white ones, Justice Stevens observed that the school was not promoting differences among the races. To the contrary, the school’s affirmative action program sought to teach students that racial differences were irrelevant. But it could do so effectively only, Justice Stevens maintained, if people of different skin colors were interacting with one another.
“The fact that persons of different races do, indeed, have differently colored skin,” he maintained, “may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the education process inevitably tends to dispel that illusion, whereas their exclusion could only tend to foster it.” He put it more vividly elsewhere in the opinion: “It is one thing for a white child to be taught by a white teacher that color, like beauty, is only ‘skin deep’; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process.”
Prof. Yoshino thinks, or at least hopes, that this argument provides a useful way of defending the Seattle and Louisville racial assignment policies.
Unlike many affirmative action plans, the Seattle and Louisville plans do not maintain that individuals of different racial backgrounds tend to think, feel, or act differently. Rather, these plans make no assumption that race is anything other than “skin deep.” They use race to convince students of its superficiality.
I appreciate Prof. Yoshino’s effort, and if his argument (and Stevens’) were more persuasive than it is I’d be happy to tell him, “Close, but not cigar.” Alas, I don’t find it even close.
First, and least interesting, he’s simply wrong about what the Seattle school district thought it was doing. As I pointed out in several places, such as here, and as the Competitive Enterprise Institute pointed out in its amicus brief, which I discussed here, that district proclaimed on its web site that “cultural racism” consisted of such things as “emphasizing individualism as opposed to a more collective ideology”; “having a future time orientation” (planning ahead); and “defining one form of English as standard.” Later, it emphasized that the district’s “intention is not . . . to continue unsuccessful concepts such as a melting pot or colorblind mentality.” In short, if the Seattle school district has a mind, teaching colorblindness is the furthest thing from it.
Unlike Seattle, in his dissent (unquoted by Prof. Yoshino) Justice Stevens also had positive things to say about “our famous ‘melting pot,’” but a more interesting factual problem concerns his claim, quoted above from Prof. Yoshino’s article, that
the fact that persons of different races do, indeed, have differently colored skin may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the education process inevitably tends to dispel that illusion, whereas their exclusion could only tend to foster it.
Wygant was argued in November 1985. Since then, through the research of Richard Sander and others (discussed most recently here), evidence has mounted that the pervasive use of extensive racial preferences in admission to college, graduate and professional schools, and hiring has all too often had an effect that is exactly the opposite of what Justice Stevens believed. Instead of “dispel(ling) the illusion” that minorities are different and less qualified, preferences based on their alleged difference (it’s that difference, after all, that allows them to provide “diversity” to others) all too often results in the preferred minorities being clustered at the bottom of their classes in selective institutions that have lowered the bar to admit them, dropping out more often, and performing less well than their peers who received no admissions or hiring preferences. In short, affirmative action as it has come to be practiced does not dispel negative racial stereotypes; it re-enforces them.
What Prof. Yoshino calls “Justice Stevens’ insight that governmental consciousness of color can be the best path to social colorblindness” actually is little, if anything, more than a restatement of Justice Blackmun’s famous observation, in Bakke, that “”In order to get beyond racism, we must first take race into account.”
It has now been almost thirty years since Bakke and twenty years since Wygant — time enough, I think, to disprove Stevens’ and Blackmun’s pedagogical theory that practicing race conscious racial preferences will teach us to abandon the “illusion” that race matters.
