On Tuesday Ward Connerly spoke at the University of Virginia law school, invited by the student Federalist Society. He appeared with UVa law professor Kim Ford-Mazrui in a debate moderated by UVa law professor Alex Johnson.
I was too busy listening and enjoying the show to take copious notes, and in any event a podcast is available here. Besides, regular readers here will know what Ward Connerly argued and that I agree with him, and no one here will be surprised that I found Prof. Ford-Mazrui’s presentation, though impressive in some ways, highly unpersuasive. He argued that the Supreme Court should continue to find race preferences constitutional, whichever of several versions of constitutional interpretation it chooses to follow (original intent, original meaning, need for corrective justice, etc.).
There was, however, an overarching aspect of the professor’s presentation that I found curious, and that was his pervasive emphasis on corrective justice. Don’t misunderstand: that issue is certainly relevant, maybe central, to debates over whether race preferences are right or wrong, but in a discussion whose purpose, as stated by the moderator, was to consider what the Supreme Court should do in Fisher v. University of Texas, I found it odd that a law professor would base his entire argument on his view that justice requires correcting the effects of past discrimination without confronting the fact that ever since Bakke the Court has ruled out correcting “societal discrimination” as a justification for discrimination in the present.
In his controlling opinion in Bakke Justice Powell wrote that the state “certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination” (emphasis added), but he quickly added that “[t]hat goal was far more focused than remedying the effects of ‘societal discrimination,’ an amorphous concept of injury that may be ageless in its reach into the past.” Writing for the Court in Wygant, Justice Powell reiterated that remedying “‘[s]ocietal discrimination alone is insufficient to justify a racial classification.” As the basis for imposing remedies that themselves discriminate against innocent individuals, Powell continued,
societal discrimination is insufficient and overexpansive. In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future.
Concurring, Justice O’Connor agreed that “a governmental agency’s interest in remedying ‘societal’ discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster under strict scrutiny.” And in her majority opinion in Croson, Justice O’Connor wrote that accepting the “mere recitation of a benign or compensatory purpose for the use of a racial classification would … insulate any racial classification from judicial scrutiny.” Allowing preference programs in the present as a remedy for past generalized, societal discrimination, she continued, “would give local governments license to create a patchwork of racial preferences based on statistical generalizations about any particular field of endeavor.” That sort of “[r]elief,” she noted, “for such an ill-defined wrong could extend until the percentage of public contracts awarded to MBE’s [Minority Business Enterprises] in Richmond mirrored the percentage of minorities in the population as a whole.”
“So, what’s wrong with that?” we can hear most pro-preferentialists asking (even as they protest that they don’t believe in “quotas”). But that’s a discussion for another day. My only point for this day is that in a debate about an upcoming Supreme Court case I found it odd to hear a law professor argue that racial preferences are justified to correct past injustice when that approach seems to have been flatly ruled out by past Supreme Court decisions. (Otherwise, there’d be no need for all the contortions over “diversity,” the only currently recognized justification for racial discrimination in college admissions.)
In deference to the students attending the debate I exercised an uncharacteristic amount of self-control and refrained from asking any questions. But since I’m obligated to exercise no such self-control on my own blog, following is a list of the questions (or in one case, an answer) I would like to have offered. (As written here they are more verbose than they would have been verbally.)
- I would have asked Prof. Ford-Mazrui if it made him uncomfortable that his rejection of Justice John Marshall Harlan’s famous dissenting assertion that “our Constitution is color-blind” and hence his belief that discrimination on the basis of race can be constitutional when it is reasonable so eerily resembles the majority opinion in Plessy. (I’ve made this point on my blog too many times over the past decade to cite, but representative are Do Preferentialists Prefer Plessy?, Preferentialists Prefer Plessy, Equal Protection And Original Intent, and Balking At Balkin On Colobrlindness (“The primary legal [not moral] difference between preferentialists and segregationists is not over principle — they both reject the non-discrimination principle favored by neutral colorblinders — but over which races it is reasonable and desirable to favor.”)
- Professor Thomas Espenshade, a Princeton sociologist who supports affirmative action, has shown (as I discussed here) that if preferential admissions were eliminated across the nation “Asian students would fill nearly four out of every five places in the admitted class not taken by African-American and Hispanic students.” Does it really make sense to continue massive discrimination against Asian-Americans so that some blacks and Hispanics can provide “diversity” to privileged whites? (In the absence of preferential admissions, the no longer preferred blacks and Hispanics could continue to receive whatever benefits “diversity” has to offer at the less selective schools they would then attend. It is only the whites (and for all practical purposes some quota-limited Asians) at the more selective schools who would be in any way deprived of those alleged benefits.)
- Continuing the theme that “diversity” uses blacks and Hispanics to provide a benefit to whites: One of the most interesting arguments in the Fisher case is UT’s argument that despite the fact that the Top 10% plan has produced more racial diversity than was ever achieved under affirmative action, many classes and whole programs are still not diverse. If as defenders of diversity argue, a good education is impossible without racial and ethnic diversity, would the university be justified in assigning preferentially admitted students to classes where they’re needed to provide it? If athletes can lose their athletic scholarships if they choose not to play the sport for which they were awarded scholarships, can the admission of preferentially admitted blacks and Hispanics be made conditional on their willingness to go where needed to provide “diversity” to others? Can they lose whatever financial aid they may have received if they refuse to enroll in classes, live in dorms, etc., where their “diversity” is required?
- If preferential admissions does even a fraction of the actual harm to preferentially admitted minorities posited by the growing body of evidence supporting the “mismatch” theory, don’t race preferences amount to discrimination against them as well as against the excluded Asians and whites, and perhaps even a form of exploitation?
- If “diversity” is as compelling an interest as the defenders of racial preferences argue, why have Texas and others failed to take drastic steps to confront the absence of diversity in so many classes and programs? As I noted here, in his Fifth Circuit opinion affirming the district court’s denial of Abigail Fisher’s discrimination complaint, Judge Patrick Higginbotham wrote that while the Top 10% law “may have contributed to an increase in overall minority enrollment, those minority students remain clustered in certain programs, limiting the beneficial effects of educational diversity.” Relying on data provided by UT, Higginbotham noted that in Fall 2002 90% of smaller classes “had either one or zero African-American students, 46% had one or zero Asian-American students, and 43% had one or zero Hispanic students.” Since Texas tolerated that glaring lack of “diversity” in so many courses and areas for so long, how “compelling” can “diversity” be? As another distinguished UVa law professor, noted religious liberty scholar Douglas Laycock, has argued, “the government cannot claim an interest as compelling if it fails to protect that interest in any important range of cases.” With regard to the right to be free from government discrimination against religion, he continued, when the government is willing to make a sufficiently large number of exceptions “it cannot credibly say that its interest is so compelling that it cannot make exceptions to protect the free exercise of religion.” Since Texas has shown itself willing to live with essentially no “diversity” across large expanses of its academic terrain, can it plausibly claim that “diversity” is so compelling that it must be allowed to continue discriminating on the basis of race in its admissions?
Those are the questions I didn’t ask. The comment I didn’t make was a reply to a question Prof. Alex Johnson claimed a moderator’s privilege to ask: if you don’t have any objection to taking socio-economic class, athletic ability, geography, etc., etc., into account in admitting students, he asked Mr. Connerly, why do you object to taking race into account? If I’d said something, I’d have said that one of the saddest, most tragic effects of the arguments that have been constructed to defend affirmative action is that, as this question proves, they have sucked all of the evil out of racial discrimination, placing it on the same moral plane as lowering the bar for athletes or preferring by subsidies peanut farmers over cotton farmers. If you can discriminate for any reason, so this offensive argument goes, you can discriminate for every reason. On this view racial or religious or sexual discrimination ceases to violate any principle or Constitutional command and becomes simply a cost-benefit question of policy.
Reading these questions I didn’t ask and the comment I didn’t make, I suspect those who attended Tuesday’s debate are relieved I kept my mouth shut.
