The Fundamental Dishonesty of the Argument for Affirmative Action or Shell Game Forms of It

There isn't enough lipstick on earth to disguise this pig

Probably the most earnestly pressed argument before the Supreme Court in favor of Harvard/UNC’s racial preferences that disadvantage whites and Asians is that race is “merely” one part of a “holistic” approach to admitting students, and thus, we are supposed to believe, narrowly confined to advance the “compelling governmental interest” of a diverse student body. I have argued (here and here) that diversity is simply a made up justification, and should count for as much as anything else that’s simply made up.

In this entry, I want to elaborate.

At the outset, I’d note that Harvard’s argument sounds like a “holistic” recipe for cake in which we have one part flour, one part sugar, one part water, one part coloring, and one part arsenic. So yes, the arsenic is “merely” one ingredient in the “overall recipe,” but any sane person would want to pass on the cake and head for the cookie plate.

I would also ask that readers use ordinary common sense when listening to Harvard’s argument. Q: What does it tell you when an advocate’s — any advocate’s — principal aim and foremost mission is to minimize the practice he’s urging? A: It tells you he knows it’s wrong. And if he knows it’s wrong, the rest of us should know it too.

The idea behind Harvard’s minimizing its racial culling is ostensibly to bring anti-white discrimination within the boundaries approved in Justice Powell’s opinion in Bakke and the Court’s opinion in Grutter. But what’s really behind it is the notion that it’s only a little bit of racism, so we can tolerate it for the Greater Good.

David Lat in his blog “Original Jurisdiction,” takes this line apart with merciless logic:

[As the plaintiffs’] lawyer in the UNC case, Patrick Strawbridge of Consovoy McCarthy, repeatedly (and correctly) emphasized, college admissions is a zero-sum game:

1. There are a limited number of spots in the Harvard and UNC classes.

2. Giving an underrepresented minority (“URM”) candidate a “plus” because of their race is functionally the same as giving a non-URM candidate a “minus.”

3. Even acknowledging that a plethora of factors are considered under “holistic” admissions, the racial “plus” or “minus” will be dispositive in some number of cases—i.e., a candidate who wouldn’t have been admitted but for their race will get accepted, and a candidate who would have been admitted but for their race will get rejected.

4. The rejected candidate has been discriminated against “on the ground of race,” within the meaning of Title VI. And if the university is a state school like UNC, the rejected candidate has been denied the “equal protection of the laws,” too.

We can argue—and the parties argued in district court—over how many applicants are affected by racial preferences. But if applicants have a constitutional or statutory right not to be subjected to racial discrimination, and Harvard and UNC knowingly violate those rights by using race-conscious admissions, the small number of victims is no defense. We don’t excuse violations of the Constitution or laws of the United States because “only a few people’s rights” were violated.

It seems to me, and from what I have seen most others, that this is the end of the road for the Harvard/UNC argument.

The remaining question is how broadly the Court’s opinion for the plaintiffs will sweep, and, specifically, whether the Court will give explicit or implicit approval to racially rigging the admissions process if it is undertaken in a better disguised form. In my view, it should not approve racially engineered admissions in any form at all.

The most frequently proposed alternative to the current system of explicit racial preference is weighted admission based on socio-economic status, or on overcoming (what I assure you will be) loosely-defined “personal hardship.”

One problem is that such a system is sure to be rife with gaming, just as the present system games the supposedly deficient “personal qualities” of Asian applicants. But the more fundamental problem is that such an alternative violates the ancient and wise legal rule that a party cannot do by indirection what it is forbidden to do directly.  The “socio-economic disadvantage” scheme, or any similar alternative, would likewise be designed — more-or-less openly — to shoehorn underqualified blacks into school when they otherwise don't have the credentials, all at the expense of white and Asian applicants. In other words, the alternatives would do exactly what the present system does, but less honestly, because they will wear a more appealing disguise.  Adding disguise to discrimination doesn’t make it better. It makes it worse, and it will be worse still if the Court itself backs such a ploy.

Bad as that is, and it’s terminal in my view, “affirmative action lite” fails for a more fundamental reason: It does not address, and if anything obscures, the real cause of lagging achievement among black applicants.

It isn't race. There is no known racial difference in intelligence or intellectual capacity.  The real cause is behavior.  Regardless of race, if you come from a stable, two-parent family with an employed father living in the home; have a mother who reads to you as a child; if your parents value education and make sure you do your homework; if they encourage or demand that you get a summer job and save what you earn; and the like, you're going to succeed more than kids whose parents don't act that way.  (This is shown by, among other things, the fact that foreign born blacks, whose cultures generally feature behavior like that, do as well as whites and much better than domestic born blacks, whose out-of-wedlock birth rate and insistence on staying in school is, as a group, relatively poor).

What this means is that racially-skewed admissions, whether done openly or by subterfuge, won't solve the problem, because the problem isn't race.  Only a deep-seated and persistent cultural change is going to solve the problem.  That is a lot of work for our country, to be sure, but it is not the work of the Supreme, or any other, court.