Our legal racism

The Trump administration is apparently preparing to challenge affirmative action in college admissions. And that, unlike much else coming out of the administration, is a good thing.

Part of the problem with affirmative action is definitional. When conceived in its original meaning, as simply a form of voluntary outreach, it commands widespread support. After all, what could possibly be wrong with going out of our way to hire and promote worthy black Americans, given our long and sad history of slavery and segregation, as a means of enhancing opportunity for members of a group for which it had so long been denied?

But when defined as a system of racial preferences and quotas, whereby blacks with weaker credentials are systematically hired (or admitted to colleges) over more qualified members of other groups, it tends to be accurately denounced as “reverse discrimination.”

The overwhelming resistance to this more radical form of affirmative action, to racial preferences, stems from moral, theoretical, and political objections.

In moral terms, simply reversing the status of the discriminators and the discriminated against doesn’t make the concept of discrimination on the basis of race any less objectionable.

Somewhat ironically for contemporary civil rights leaders, who view resistance to preferences as equivalent to racism, the primary lesson of the civil rights movement has been effectively internalized— that discrimination because of race, ethnicity or gender is wrong as a matter of principle, regardless of which groups it favors or hinders, with its corollary that we should all be judged on the basis of our ability and “the content of our character.”

In short, racial preferences violate some of our most deeply ingrained assumptions about equal treatment, justice, and fairness; that our government should facilitate such violations in hiring and college admissions has undoubtedly had a profoundly disillusioning effect on most Americans and contributed to, rather than reduced, racial divisions.

The theoretical conundrum associated with preferences concerns, on the other hand, their inherent interminability. In one of the most important Supreme Court cases upholding preferences in college admissions, Grutter v. Bollinger (2003), Sandra Day O’Connor emphasized the temporary nature of the preferences expedient, suggesting that at some future point (25 or so years) they would no longer be necessary. Alas, what O’Connor didn’t do, because she logically couldn’t, was articulate any benchmark or decision rule that would permit us to identify that “no longer necessary” point and thereby allow preferences to end.

Preferences can never be ended on the basis of their own logic because there exists no way of determining whether and when they have achieved their declared purposes; there is no way to know if we have got there if we don’t know where “there” is or what it would look like.

The permanence of preferences, or at least the impossibility of identifying a time and rationale for ending them, also necessarily leads to what Victor Davis Hanson calls “competitive victimhood.”

Since the original purpose of preferences—compensation for past injustice—can obviously apply to more than just black Americans (even if not as persuasively), there is conceivably no end to the number of allegedly victimized groups who can demand compensation. And once the principle is established that preferences can be obtained based on claims of past oppression, incentives emerge for “oppressed” status, and competition develops between the oppressed groups.

As Hanson puts it in his diagnosis of the disorder, “adjudicating which particular group is more victimized and in greater need of government reparations is a hopeless task in a multiracial society … . After all, who can calibrate necessary government set-asides and reparations for a century and a half of slavery, for ill-treatment of Native Americans, and for descendants of victims of the Asian immigration exclusionary laws, of segregation, of the unconstitutional repression of German citizens during World War I and of Japanese-American internment during World War II?”

That preferences contain a formula for internecine struggle between victim groups, what Arthur Schlesinger called “the disuniting of America,” can be found even in the source of the administration’s current challenge to them—the claim by Asian Americans that they have been victims of racial discrimination in college admissions.

And so they have: According to Princeton sociologist Thomas Espenshade, Asian Americans with comparable credentials are six times less likely to be admitted to elite colleges than Hispanics and a whopping 16 times less likely to be admitted than blacks. In his words, “To receive equal consideration by elite colleges, Asian Americans must outperform whites by 140 points, Hispanics by 280 points, blacks by 450 points” on the 1,600-point SAT.

The disgraceful “cap” on Jewish numbers that once existed at Ivy League schools has now become, in effect, a cap on Asian Americans. As always, preference can’t be given to one group without discriminating against another.

How strange—the left claims that blacks suffer from pervasive institutional racism but the only formal racism left in in America is our institutionalized system of racial preferences aggressively defended by the left.