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LETTERS
TO THE EDITOR TABLE
OF CONTENTS:
"The Opinion of the Court
[in Grutter v. Bollinger] . . . was widely criticized, even by those who welcomed
the result. But the criticism failed to note a fundamental, indeed a fatal objection
to what the Court had done. " "[University
of Chicago] President Randel . . . apotheosizes Diversity, a buzzword of our time,
as an exalted purpose -- overarching, undefined, unquestioned -- for which all
must strive. . . . What exactly are we asked [thus] to embrace and increase?"
"The
racial nondiscrimination rule has exceptions, as when national security or individual
safety is at stake. Is racial preference for black, Latino and Native American
college applicants an appropriate exception?" "The
dean's modesty on the law school's behalf is inappropriate. If the report errs,
it should be contradicted. If it is correct, the practice it reveals demands a
convincing justification or a speedy abolition." The
Democrats, in their 2000 party platform, condemn racial discrimination and praise
affirmative action. Do they see the contradiction? "Most
American college students value racial diversity on campus, but oppose racial
preference as the way to achieve it." "When
reporting 'minority' admissions to the University of California, why don't you
count Asian Americans?"
"To get its results,
the University of Virginia has to make race a major consideration. This is not
a little finger on the scale, but a whole fist." "Readers
of The Shape of The River will find a wealth of data, but nothing that
confutes the five costs of race-sensitive admissions. . ."
"American education should
avoid racial comparisons, racial goals, racial rivalry, racial discrimination.
The great point is to offer each pupil the best education possible … whatever
the capacities and performance of others in his racial or ethnic group."
"We believe that racial
discrimination is wrong, whether it favors whites over blacks or blacks over whites.
We believe that gender discrimination is also wrong, whether it favors men over
women or women over men."
"To maintain a public
policy that flouts the national conscience requires duplicity of the most determined
and persistent kind. So it was with slavery and racial segregation, and so it
is with affirmative action that utilizes racial preference."
"Were
I a black American, I would despise any white American who, in order to ingratiate
himself with me or other blacks, offered to shelve an historical figure of Jefferson's
calibre."
"California's Proposition
209 reinstates the words and thrust of the 1964 Civil Rights Act, which explicitly
and repeatedly outlawed difference in treatment based on race or ethnicity."
"To fight a battle they
could not refuse, the supporters of affirmative action occupied ground they ordinarily
avoid. In the process a confession was made, which they hope the public did not
hear."
"No one—not even a distinguished
professor of history—can refute assertions that may be reasonable, by changing
them into assertions that are not."
"No program can be fair,
if it is based on a double standard."
"No
racial or ethnic group—black, brown or white; Hispanic, Irish or Japanese—has
the moral right to be appointed to any faculty in any specific proportion."
"The right not to be
discriminated against on account of 'race, color or national origin' belongs equally
to all. It is not a minority right or a majority right, but everyone's
right."
"In the 1960s a powerful
American consensus assumed that all persons have a moral and legal right to racial
and ethnic nondiscrimination. If they do, the University of California at Berkeley
has flouted the law for twenty years, yet there have been no arrests."
"The right to racial
equality is not a group right to equal shares or proportions of the number selected
but an individual right to be considered on a par with other applicants regardless
of race."
"The
Opinion of the Court [in Grutter v. Bollinger] . . . was widely criticized, even
by those who welcomed the result. But the criticism failed to note a fundamental,
indeed a fatal objection to what the Court had done. " Last June, in Grutter v. Bollinger, the Supreme Court held that "student body diversity is a compelling state interest that can justify a narrowly-tailored use of race in university admissions." The Opinion of the Court, written by Justice O'Connor, was widely criticized, even by those who welcomed the result. But the criticism failed to note a fundamental, indeed a fatal objection to what the Court had done. This objection does not turn on factual evidence, moral principles, or legal precedents. It does not depend on any view as to the desirability of affirmative action. It simply describes an insuperable obstacle to the judgments undertaken by the Grutter Court. The obstacle, disregarded in the Opinion, is the enormously broad and multifarious character of "diversity." According to the dictionary, "diversity" means difference. The word can attach to anything that exists. Student body "diversity" can refer to any and every respect in which students differ from each other, whether the difference is good, bad, neither, or both. Student body "diversity" is so indeterminate that no reasonable judgment can be made as to whether it is a compelling interest, or whether any given means is narrowly tailored to serve it. These two judgments would be possible if, and only if, the type and extent of "diversity" were specified. Without such specification, the Court could not know what it judged. Without this knowledge, the judgments had no basis. They were, literally, absurd. These
absurdities were self-inflicted wounds. Nothing in the nature of "diversity" required
the Court to do what it could not. It was free, under reason and law, to frame
the question in a way that could be answered. Rather than student body "diversity"
in general, the subject of deliberation could easily have been student body "diversity,"
specified in kind and amount. For example, the Court might have weighed, as a
possible compelling interest, Michigan Law School's stated goal of enrolling underrepresented
minority students (kind of diversity) in sufficient numbers for extensive campus
interracial interaction (amount). But deliberation and judgment concerning student
body "diversity," without such specificity, is nonsense. It suggests the proverbial
warrior, mounting his steed and riding off in all directions.
[return to Table of Contents]
Crescat diversitas vita excolatur?? Last October, President Randel issued a statement on the conduct of campus debate of contentious public issues. Much that he urged is eminently sensible: The university should encourage debate, support a diversity of individual views, refrain from taking sides, bar violence and intimidation, oppose intolerance and prejudice, and promote mutual respect and trust. But then the statement goes awry. It apotheosizes Diversity, a buzzword of our time, as an exalted purposeoverarching, undefined, unquestionedfor which all must strive. "We must ensure the diversity of this community by ensuring that everyone is prepared to subscribe to the principles for which the University stands and is prepared to embrace diversity, whether of race, religion, gender, or, yes, even academic discipline. No part of the University community can think of itself as immune from this concern for diversity. An unprecedented number of programs is in place to increase diversity in the functioning of our academic programs and in the ways in which we carry on our business affairs and our relations with the neighborhood and city of which we are a part. Each of us must believe that embracingnot merely toleratingdiversity is a personal obligation." [Emphasis added.] What exactly are we asked to embrace and increase? To many people, "diversity" means the presence of persons of color: "to increase diversity" means to increase the proportion of persons of color in a community, thus decreasing the proportion of whites. This treats people differently based on race. But treating people differently based on their race is racial discrimination, a practice for which President Randel has declared "zero tolerance." Many believe that "diversity" includes women, homosexuals, and the disabled: "to increase diversity" means to increase the proportion of such persons, thus decreasing the proportion of their opposites. This treats people differently based on their gender, sexual orientation, or disability. But whether people should be treated differently on these bases is a question of morality or law, which is not settled by the label, "diversity." Some argue that "diversity" should cover political and religious affiliation: "to increase diversity" would mean to increase the proportion of, say, political conservatives and religious fundamentalists on campus. The university would ask student and faculty applicants to disclose their political and religious affiliations, and would treat them differently on these grounds. But this would employ questionable bases of discrimination, invade freedoms of political and religious belief and association, and further balkanize and politicize the university. These harms would not be removed by calling the goal, "diversity." In the above examples, the cult of Diversity operates by classifying people based on their membership in certain groups, then favoring them accordingly. Is this what President Randel had in mind? In the dictionary, "diversity" simply means variety. The opposite of diversity is similarity. Similarity and diversity are ancient, basic aspects of existence. Neither is good or bad in itself; either may be good or bad, depending on the circumstances. As gods, or demons, both are false. [Site Editor's Note: The letter's first line is adapted from the motto of the University of Chicago, "Crescat scientia, vita excolatur," which may be translated: "As knowledge grows, life is ennobled."] [return to Table of Contents] "The
racial nondiscrimination rule has exceptions, as when national security or individual
safety is at stake. Is racial preference for black, Latino and Native American
college applicants an appropriate exception?" We should have learned long since that racial neutrality on the part of government is indispensable in a multi-racial, multi-ethnic society. Governmental favoritism based on race or ethnicity results inevitably in racial or ethnic partisanship, animosity, oppression, and violence. The racial nondiscrimination rule has exceptions, as when national security or individual safety is at stake. Is racial preference for black, Latino and Native American college applicants an appropriate exception? Your editorial ("Affirmative Action Affirmed" - May 16) argues that race-based affirmative action helps universities become better "training grounds for democracy." You do not mention the harmful consequences that have piled up during the thirty-five year reign of this policy:
Do such results make
universities better "training grounds for democracy"?
o o o o o o o o o o "The
dean's modesty on the law school's behalf is inappropriate. If the report errs,
it should be contradicted. If it is correct, the practice it reveals demands a
convincing justification or a speedy abolition." Having analyzed admissions to dozens of public universities across the country, the Center for Equal Opportunity has given first prize for racial preference to our own law school ("Discrimination worst at UVa law school, report says" DP - 4/25/02). In response, Dean John Jeffries modestly downplayed the school's achievement, without specifically challenging the report's conclusions. Race is a factor in admissions, he conceded, unless the applicant has "clearly superior credentials," or is "clearly unqualified." This of course leaves most of the applicant pool—the more or less qualified—open to race-based selection. How does it affect the probability of admission for these students? Take instate male applicants in 1999. If their Law School Aptitude Test Score equaled 170, and their Undergraduate Grade Point Average, 3.75, their probability of admission was 100% if they were black, 99% if Asian, and 98% if Hispanic or white. (Just as Jeffries indicated.) But, if their LSAT equaled 165 and their UGPA, 3.50, the probability stayed 100% if they were black, but fell to 67% if Asian, to 54% if Hispanic, and 52% if white. Further down the line, if the applicants' LSAT equaled 160 and their UGPA, 3.25, the probability of admission was still a very high 95% if they were black, but a very low 5% if Asian, and 3% if Hispanic or white. At this level, they were almost certain to be admitted if black, and almost certain to be rejected if Asian, Hispanic or white. Finally, if their LSAT equaled 150 and their UGPA, 3.00, the probability was still 32% if they were black, but 0% if Asian, white or Hispanic. At all but the highest of these four levels, the black advantage was huge. In contrast, the advantage was only slight for Asians, and zero for Hispanics. (The full report is online at www.ceousa.org ) The dean's modesty on the law school's behalf is inappropriate. If the report errs, it should be contradicted. If it is correct, the practice it reveals demands a convincing justification or a speedy abolition. [return to Table of Contents] o o o o o o o o o o The Democrats, in their party platform, condemn racial discrimination and praise affirmative action. Do they see the contradiction? -- Letter to the Chronicle of Higher Education (unpublished) 8/17/00 The Democrats, in convention assembled, have reiterated their opposition to discrimination. But one cannot tell what they mean by the word. What conduct do they oppose under that name? Do they themselves know? The statements in their Party Platform (Chronicle, Aug 15) seem contradictory. Do they employ a special definition of discrimination that resolves the contradictions? Here are the statements: 1. "Passage of the Civil Rights Act of 1964 was one of the proudest moments of our nation's history and a sterling testament to our aspirations as a people." 2. "Al Gore has strongly opposed efforts to roll back affirmative-action programs." 3. "We continue to lead the fight to end discrimination on the basis of race, gender, religion, age, ethnicity, disability, and sexual orientation." The traditional definition of discrimination in this context is any different or unequal treatment. By this definition the third statement would read: We continue to lead the fight to end any different or unequal treatment on the basis of race, gender, religion, age, ethnicity, disability and sexual orientation. This is precisely the definition used throughout the Civil Rights Act of 1964, which fully deserves the high praise of the first statement. The Act forbids discrimination in employment, public accommodations, federally assisted programs (e.g., colleges), and other areas. Every prohibited, substantive offense is a difference or inequality of treatment based on race, color, religion, national origin or sex. The platform's first and third statements are thus perfectly consistent. In the second statement, however, the Democratic candidate for president is lauded as a champion of affirmative action. The vast majority of affirmative-action programs, whether in higher education, employment or public contracting, consist of different or unequal treatment favoring racial minorities or women. Which means, under the traditional definition of discrimination, that Mr. Gore is a champion of discrimination based on race and gender. If
the Democrats are using the traditional definition, their approval of discrimination
in the second statement contradicts their disapproval in the third. Moreover,
in one statement or the other, they are deceiving the public. Since they surely
do not want to be incoherent or deceptive, they may have in mind a special definition
of discrimination, which would make everything OK. If so, they should share their
secret. Otherwise, we cannot know what they are truly against ... or whether they
know. o
o o o o o o o o o "An overwhelming majority of American college students value racial diversity on campus, but consider racial preference wrong as a means for achieving it." -- Letter to the Charlottesville, Virginia, Daily Progress, published 5/23/00 As a scholar and critic of racial preferences in college admissions, I had wondered how American college students actually felt about the issue, but had seen no reliable, nationwide evidence. Supporters of preference have conducted surveys indicating that students favor racial diversity, but the respondents were not asked what they thought of racial preference. Recently Zogby International, a polling organization whose work became familiar to the public during this year's Presidential primaries, put 56 questions about "academic life" to a national sample of 1,000 college students. Included were a few questions on racial preference and ethnic diversity. Since the wording of a poll question can affect the answer, I quote items 23, 29, 35 and 41 verbatim. 23. Schools should give minority students preference in the admissions process.
29. It is right for a college or university to give preferential treatment to some minorities in the admissions process, even if it means taking away opportunities for other qualified applicants.
35. How important is racial and ethnic diversity of the student body on your campus?
41. Because some individuals and minorities were denied access to higher education in the past, they should have more opportunities today than white men to attend college.
Thus, according
to a national poll, an overwhelming majority of American college students value
racial diversity on campus, but consider racial preference wrong as a means for
achieving it. The poll was conducted last January with a margin of error of +/-
3.2%. | |||||||||||||||||||||||
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o
o o o o o o o o o "When reporting minority admissions to the University of California, why does the Chronicle not count Asian Americans?" -- Letter to the Chronicle of Higher Education, published 5/17/00 When reporting minority admissions to the University of California, why does the Chronicle not count Asian Americans (U. of California Sees Increase in Minority Applicants Admitted," April 14)? The report states that the "university system accepted 7,336 minority students," 19.1% of the total. These figures are correct for the number of Black, Hispanic and Native Americans. But if you had included Asian Americans, the figure for minority applicants admitted would have been almost three times as large: 21,642 or 56.4% of the total. (Or 51.8%, if the total includes applicants who didn't state their race/ethnicity.) Why the exclusion? Was
it to make the University's race-neutral admissions policy seem oppressive to
minorities? A report that minority applicants had won more than half the available
slots would evoke a rather different reaction. [return to Table
of Contents] o o o o o o o o o o
The public descriptions of UVa's racial admissions policy by President Casteen, the Faculty Senate, and the Charlottesville City Council have two striking things in common. They never refer to the policy as "racial preference," which of course it is, and they insist on calling it "equal opportunity," which it is not. The pertinent facts are in the public domain. The Center for Equal Opportunity, a private agency critical of affirmative action, has tabulated first-year admissions for 1996. The Center found (in figures not disputed by UVa) that the admission rate for black applicants (48%) was almost twice the admission rate for whites (25%). These figures strongly suggest racial bias, but are not conclusive, unless one knows something about the relative qualifications of the thousands who applied. Based on data for each applicant, Dr. Robert Lerner, co-author of the Center's report, was able to calculate the different probabilities of admission for black and white applicants with the same grades and test scores. For example, the average 1996 UVa applicant stood at the 88th percentile of his/her high school class, and scored 1276 on the SAT. The probability of admission for a black applicant with these qualifications was 89%; for a white applicant with the same qualifications, 16%. Thus, a black with identical grades and scores had more than five times a white's chance of admission. If racial discrimination is a difference in treatment based on race, this is clearly racial discrimination. If equality of opportunity is an equal chance regardless of race, this is emphatically not equal opportunity. University officials do admit that race "is a factor," but quickly add that it is only one of many, such as low income, mediocre schools, leadership ability, artistic talent, persistence against obstacles, extracurricular activity, community service and so on. But these other factors, impartially evaluated, would often count for whites as well. To get its results, UVa has to make race a major consideration. This is not a little finger on the scale, but a whole fist. The University may believe that it has sufficient
reason for a policy of racial discrimination and unequal opportunity. But such
a policy cannot be persuasively defended by language that denies its existence
.[return to Table of Contents] o
o o o o o o o o o "Readers of [The Shape of The River] will find a wealth of data that inform, clarify, distinguish, demonstrate and surprise, but nothing that confutes the five costs of race-sensitive admissions [I have] listed." -- Letter to Commentary Magazine, published abridged, May 1999 Two reasons that race-based affirmative action still flourishes are the shameful scarcity of able, well-informed critics (like the Thernstroms) and of journals (like Commentary) willing to publish their views. The book they attack invites us impartially to weigh the consequences of "race-sensitive" college admissions: the benefits versus the costs. It claims three important benefits: the career advantages to the black students who receive preferential admission, the increase in racial diversity (i.e., the number of blacks) at historically white schools, and a reduction of the national inequality of income and influence between blacks and whites. In my judgment, the first benefit is offset by the career disadvantages to the white and Asian students who are denied admission because of their race. The second benefit is offset by a decrease in the number of black students at the schools they would have attended if race-based admissions did not exist. However, the third benefit is sufficiently proved by combining the career gains of the blacks admitted via preference and the career losses of the whites thereby displaced. Against this
one benefit, here are some costs that the book should have weighed and did not: 2. The moral authority of this rule in other areas has been undermined. By the example of our leading colleges and universities, blacks and Hispanics are taught that discrimination in their behalf is not only permissible, but praiseworthy, a lesson they increasingly feel free to apply in their own conduct. Forty years ago those who favored racial preference were called racists; nowadays the people most likely to be attacked with this label are not the practitioners of racial preference but its opponents. 3. Installed for the admission of students (and the employment of faculty and staff), racial preference has invaded course content. In literature, history and sociology considerations of racial representation and balance influence which authors are assigned and which people and problems are studied. 4. When the less able displace the more able, the quality of work necessarily declines, in the first year of college on up to the top ranks of the professions, business and government. Human problems and needs require the best hands we can find, with the best training we can give. Individuals involved in the displacement also suffer, whether blocked from doing what they can, or propelled into doing what they cannot. 5. The pretense that no substantial discrimination by race or sacrifice of quality occurs under affirmative action has spawned decades of evasion, equivocation and duplicity by its academic sponsors. Such conduct corrupts as surely as the evils it tries to conceal. Readers
of the book will find a wealth of data that inform, clarify, distinguish, demonstrate
and surprise, but nothing that confutes the five costs of race-sensitive admissions
listed above .[return to Table of Contents] o o o o o o o o o o
In a report entitled "City education officers discuss 'achievement gap'" (August 15) you described the reaction of city officials to the performance of Charlottesville students on a statewide achievement test. Black pupils had scored substantially below whites, across the state and especially in Charlottesville. Members of the school board and the city council agreed that this racial gap must be eliminated and suggested what both the schools and the city could do toward that objective. A substantial disparity in black and white test scores makes all of us uncomfortable. People want it removed and are tempted to see its removal as a test. They assume that if our schools were competent and our society fair to blacks, the racial gap would not exist. Although this reaction seems racially sensitive and fair-minded, I believe it is mistaken and harmful. Consider another racial gap in school achievement, far away from the history and prejudices of Charlottesville. In California only the top 12% of high school graduates (based on grades and test scores) are eligible to attend a branch of the University of California system. The annual gap between white and Asian graduates is large: 12-14% of the whites win eligibility, compared to over 30% of the Asians. Does this gap prove California schools incompetent and California society unfair to whites? Not when you remember the many possible reasons for differences in student achievement. Why are white students behind Asians? Motivation? Character? Personality? Temperament? Predilections? Hard work? Initial capacity? Parental qualities? Parental involvement? Better teachers? There is no need to frame the question in racial terms. Ask instead: Why do some individuals do less well? Every good teacher tries to answer this question and then to work on the skills, habits and other factors that can be improved. American
education should avoid racial comparisons, racial goals, racial rivalry, racial
discrimination. The great point is to offer each pupil the best education possible,
based on his capacity and attained through his performance, whatever the capacities
and performance of others in his racial or ethnic group. [return
to Table of Contents] o
o o o o o o o o o "We believe that racial discrimination is wrong, whether it favors whites over blacks or blacks over whites. We believe that gender discrimination is also wrong, whether it favors men over women or women over men." -- Letter to the Charlottesville, Virginia, Daily Progress, published 10/8/97. Democratic and Republican politicians are understandably reluctant to ban affirmative action programs that give preferential treatment to some women and minorities. When politicians promote legislation that removes special privileges, they risk losing more supporters than they gain. At present, Democrats enjoy an overwhelming advantage in the black vote, a substantial advantage in the Hispanic vote and some advantage in the female vote. Republicans want to reduce these advantages; Democrats want to keep them. Thus both parties avoid taking a position that would antagonize some members of these groups. Ordinary citizens are freer to uphold what they think is fair, and thus are often ahead of their "leaders.'' Canvassing my neighbors (on Mason Lane and the adjoining streets in Charlottesville} I found most of them clearly opposed to governmental discrimination or preference based on race, ethnicity or gender. The statement they signed, "An Open Letter to the Candidates for Public Office in the Virginia State Elections of 1997,'' reads as follows: "We
the undersigned, Democrats, Independents and Republicans, respectfully urge you
to say clearly where you stand on the issue of Affirmative Action. I believe that the great
majority of Virginians would welcome such a law as a splendid way to inaugurate
a new century! [return to Table of Contents] o
o o o o o o o o o "To maintain a public policy that flouts the national conscience requires duplicity of the most determined and persistent kind. So it was with slavery and racial segregation, and so it is with affirmative action that utilizes racial preference." -- Letter to the Charlottesville, Virginia, Daily Progress, published 7/2/97 To maintain a public policy that flouts the national conscience requires duplicity of the most determined and persistent kind. So it was with slavery and racial segregation and so it is with affirmative action that utilizes racial preference. Take for example some of the words that President Clinton used and failed to use in his recent speech calling for ''honest dialogue'' concerning race relations in America. He pointed to an important fact. There has been a steep decline in the number of black students admitted to the University of California law school at Berkeley and the Texas University law school at Austin. This has occurred because both schools have suspended their policies of granting race-based preference to minority applicants. But the fact was packaged in duplicity. Mr. Clinton called the change ''resegregation.'' Segregation, as he knows very well, was a policy whereby blacks were discriminated against and excluded, because of their race. If the President has evidence that black or other minority applicants to the schools in question are being turned down because of their race, he should present it. If he has no such evidence, he should scrap a dishonest label. The admission figures cited by Mr. Clinton in the speech do show discrimination - not present but past. Not the kind charged by Mr. Clinton, but a kind that seems invisible to him and to other supporters of affirmative action. The figures confirm that the levels of minority admissions to elite schools have required substantial amounts of racial preference, favoring less qualified black and Hispanic applicants over better qualified whites and sometimes Asians. Should we call it racial discrimination when preference based on race favors whites over people of color? Of course we should, and everybody does. Should we call it racial discrimination when preference based on race favors people of color over whites? Of course we should, but the supporters of affirmative action, including the President, never do. If they mean to help create an honest dialogue,
this would be a good place to start. o o o o o o o o o o
Thomas Jefferson owned slaves. Wherefore a majority of the delegates at a recent Unitarian-Universalist church conference voted to stop calling their district by his name. They said they wanted to help blacks feel more at home in their denomination. This time around the resolution failed, having received 3/5 of the votes, but not the required 2/3. George Washington owned slaves. In order to help blacks feel more at home in America, should we change the name of the nation's capital? For two hundred years all over the world, in the struggle for free and democratic government, people of every race and many nationalities have been inspired by the words and deeds of Thomas Jefferson. That he was a slaveholder was no secret. But they were able to see, past an important fault, the man's overall preeminence. They looked to him when they sought to replace colonial subordination with national independence, autocracy with representative government, nobility and commons with democratic equality, mass ignorance with public education, an established religion with separation of church and state or intellectual conformity with freedom of opinion. And, notwithstanding his own backsliding, his shining words empowered in America and elsewhere the overthrow of Negro slavery and racial segregation. Were I a black American I would be proud, as many blacks have been, to claim Thomas Jefferson as a fellow countryman and a fellow human being. I would not be blind to his faults, but I would not let those faults blind me to his talents, his virtues and his public service. I would despise any white American who, in order to ingratiate himself with me or other blacks, offered to shelve an historical figure of Jefferson's calibre. I would be insulted at the assumption that, because I was black, I could not or would not acknowledge greatness in any person who had owned slaves. Not
much mind or soul is required for American church delegates in the late twentieth
century to condemn slavery and to vote Thomas Jefferson out of their pantheon.
But to supply or replace the kind of leadership he provided - that would be a
different matter. o o o o o o o o o o
Nick Thompson accuses the backers of Proposition 209 of driving a wedge of racial antagonism into the heart of California. ("A Race Card in California" 11/19/96.) 209 is the amendment to California's constitution that would prohibit state agencies from discriminating against or granting preferential treatment to anyone on account of race, ethnicity or sex. It reinstates the words and thrust of the 1964 Civil Rights Act, in which Congress explicitly and repeatedly outlawed difference in treatment based on race, sex, or national origin. Although this language has never been amended or repealed, various courts and executive agencies have so glossed it, that prohibition has been transformed into permission, even into requirement. Mr. Thompson is right that the race card was played during the campaign. But who played it? Which side profited from its presence? The backers of 209 were trying to persuade voters that the state should never treat people differently because of their race in decisions concerning employment, education and contracting. Appeals to racial partisanship, attempts to stir up racial animosities, would have contradicted this message and alienated many of its supporters. For
opponents, the task was different. Their unspoken premise was that whether racial
preference is right or wrong depends on what race you belong to. However, this
view lacks sales appeal. An honest argument would have tried to show that affirmative
action, though discriminatory, is necessary. Anti-209 spokesmen chose instead
to wrap themselves in incoherence: they denied that affirmative action discriminates,
but insisted that to outlaw discrimination would kill affirmative action. When
this failed there remained, as perhaps the only way to win, the accusation that
209 was a racist and sexist scheme to block the progress of minorities and women.
(See, for example, Mr. Thompson's column.) Though not victorious, the tactic was
effective. It reduced the overall majority for 209 from about 2:1 in March 1995
to 5:4 on Election Day, and greatly increased the racial polarization of the vote
for and against.[return to Table of Contents]
o o o o o o o o o o
On Election Day the people of California voted to approve Proposition 209, an amendment to their state constitution that would prohibit the state "from discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity or national origin." Although commonly referred to as an anti-affirmative action amendment, Proposition 209 does not mention "affirmative action." Discrimination and preference, in the circumstances specified, are all that it forbids. The language of the amendment prohibits affirmative action programs only when they involve discrimination or preference, based on race, ethnicity or sex. Nevertheless, supporters of affirmative action were unanimously and vigorously opposed to Proposition 209. The moment it was made public, they labeled it an anti-affirmative action amendment. They insisted that its provisions would end state-sponsored affirmative action for minorities and women in California. They took this position, despite what it says about the nature of affirmative action. To fight a battle they could not refuse, they occupied ground they ordinarily avoid. In the process a confession was made, which they hope the public did not hear; a secret was revealed, which they would rather conceal. The secret is that preference and discrimination, based on race, ethnicity or sex, are central to affirmative action programs for minorities and women. Now some people would say that this is hardly a secret: it has been obvious all along. But the practitioners of affirmative action have not treated it as obvious. They advertise what they do as "opening doors" and "assuring equal opportunity," not as "engaging in discrimination" or "granting preferential treatment." When faced with the charge that affirmative action discriminates, they do not frankly answer: "True, but we believe that such discrimination is justified." They deny, equivocate or make counter-charges. The California campaign
has blown their cover. [return to Table of Contents] o o o o o o o o o o
What was Eric Foner trying to accomplish in his review (Winter 1996) of Dinesh D'Souza's book, The End of Racism? If he hoped to dissuade people from reading it by describing the book as absurd and bigoted, he probably succeeded. But if his purpose was a reasoned demonstration of the book's flaws, his mode of attack made success impossible. He frequently and substantially misrepresents what the book says. No one-not even distinguished professors of history-can refute assertions that may be reasonable by changing them into assertions that are not. According to Foner, D'Souza claims that "discrimination based on the belief in biological inferiority has disappeared." An absurd claim, but not D'Souza's! He presents the end of racist discrimination as a desirable and attainable goal, not an accomplished fact. The book does assert that racism in this country has "declined" and that it is not "the main problem facing blacks today." [pp 23,24] According to the review, "D'Souza describes racism as nothing more than an 'opinion'..." Not so. The book defines racism to include both the belief that racial differences in intellectual and moral capacity are innate, and the will to discriminate accordingly. [pp 25-26] The
review: D'Souza fails to understand that . [r]acism arose not simply to explain
difference but to justify conquest, colonization, enslavement and economic domination."
The
review: According to D'Souza, "all one needs to know about Aztecs is that
they practiced human sacrifice." The review:
"American children should study other cultures, [D'Souza] believes, but only
as 'horrible examples' of barbarism and injustice." The
review: D'Souza makes the "outrageous" assertion "that blacks owe American
society a debt of gratitude for slavery, which brought them 'into the orbit of
Western freedom.'" The list of misrepresentations
could go on. Were they deliberate or the unwitting products of haste and bias?
How many instances of misrepresentation must a review contain to make it unacceptable
for publication in Dissent? [return to Table of Contents] o o o o o o o o o o
President Clinton says that affirmative action must be fair, and he pledges to eliminate or reform any of its programs that are not. No program can be fair if it is based on a double standard. The double standard in the President's approach to affirmative action shows up whenever he deals with the idea of discrimination. When he speaks of discrimination against minorities or women, he means any unequal treatment based on race, ethnicity or gender. Thus, it would count as discrimination if a qualified white male were given preference over a minority or female applicant who was equally or better qualified. But reverse discrimination he defines differently. The president believes that it does not count as discrimination when a qualified minority or female applicant is given preference over a white male who is equally or better qualified. It only counts as discrimination when unqualified minorities or women are selected instead of qualified white males. In other words, when operating in reverse, unequa1 treatment is discriminatory only if the inequality is quite large. We cannot have "equal opportunity regardless of race or gender" unless we grant every person an equal right not to be discriminated against on those bases. We do not give everyone an equal right if we define discrimination differently according to the race or gender of the victim. An affirmative action policy with a double standard in its definition of discrimination is unfair. If based on race and gender, the double standard is not only unfair, it discriminates on the very bases that are supposed to be out of bounds. President
Clinton is right that discrimination is still a problem in the United States.
We cannot resolve this problem without a clear public consensus that racial or
gender discrimination, regardless of whom it favors or injures, is morally wrong.
This consensus is gravely undermined when government commands and practices the
contrary. [return to Table of Contents] o o o o o o o o o o
Two recent editorials in The Daily Progress respond to charges that the University of Virginia has not appointed enough black professors by suggesting that more black students pursue academic careers ("UVA's racial progress is a mixed bag," April 21, and "Students can enrich diversity," April 22). The figures quoted raise the realistic question: How can university faculties reach a goal of 12 percent black (the proportion in the national population), when only 3.5 percent of the potential applicants available for teaching positions are black? I agree that black students can help to increase the ratio of black professors by increasing the number of black PhDs. But I disagree with the apparent assumption in the editorial that the university's goal should be the appointment of blacks as teachers according to their proportion of the population. No racial or ethnic group - black, brown or white, Hispanic, Irish or Japanese - has the moral right to be appointed to any faculty in any specific proportion. But every person, in every such group, has the right not to be discriminated against on account of race. When you strive for a certain percentage of positions for a racial group, racial discrimination against members of other groups is unavoidable. The view that universities should hire a stated percentage of certain racial or ethnic groups is not based on consistent moral principle. No one claims that all racial and ethnic groups should be represented on university faculties according to their proportion of the population. No one claims that this goal of proportional representation should be pursued by university football and basketball teams. It is difficult for the administration of a public institution to do the right thing when influential opinion takes the other side. During the decades of racial segregation, the University of Virginia was just as segregated as the rest of the South. The right thing, as people now acknowledge, would have been not to discriminate on the basis of race. It is still the right thing. It is the core of justice in racial relations. Wholehearted adoption of this principle
would be excellent for the university's soul, with collateral benefits to the
quality of its work and the morale of its constituents. o o o o o o o o o o
Where do the advocates of affirmative action stand concerning the right not to be discriminated against on account of race or ethnicity? They would not hesitate to say that African Americans have such a right; also Hispanic, Asian and Native Americans. But what about white people? Is the right not to be discriminated against on account of race something that belongs to white people as well? If it does, it is violated every time an affirmative action program selects people of color over white people, not because of superior ability, but because of race. Supporters of affirmative action don't really deny to whites the right not to be discriminated against: they simply suspend it. Sometime in the indefinite future they apparently would treat the right to racial and ethnic non-discrimination as something that belongs to everyone, but for the present they would reserve and enforce it only for ''protected minorities." Not that they clearly say so. They use more attractive language, but inside the fancy packaging what you get is racial discrimination, plain and undiluted. During the last half-century, the American people adopted, at the national, state and local levels, anti-discrimination statutes with respect to employment, education, housing, health care, voting, public accommodations and public facilities. In these statutes the right not to be discriminated against on account of ''race, color or national origin'' belongs equally to all. It is not a minority right or a majority right, but everyone's right. I agree with the statutes. If
the supporters of affirmative action truly believe that their policies of racial
preference are just, let them ask the American people, through their legislative
representatives, to change the anti-discrimination statutes. Let them seek amendments
to remove or suspend the right of white people not to be discriminated against.
I wonder if they realize how emphatically their views would be rejected, if frankly
urged in the legislative arena. o o o o o o o o o o
Andrew Hacker's review survey (NYR, 10/12/89) on affirmative action in college and university admissions omits a crucial factor. Although he draws attention to the conflict between the ideal of equal opportunity and the widespread practice of preferential admission, he never mentions any moral or legal right not to be discriminated against on account of race, color or national origin. Is there such a right in the United States? Whether preferential admission for blacks, Hispanics and other minorities is justifiable depends in large part on the answer to this question. Prof. Hacker reports the argument, made by Ira Glasser of the ACLU and by others, that colleges and universities often lower their academic admission requirements for veterans, athletes, children of alumni and residents of the home state, so why not, when the social benefits are important, for disadvantaged racial and ethnic minorities? But preferential admission for the former groups, while involving questions of fairness as well as dangers to academic quality, does not violate any right to racial or ethnic nondiscrimination. If such a right exists, its violation cannot be justified by pointing to examples of discrimination based on other factors. The issues are well illustrated by the situation described in the report, "Freshman Admissions at Berkeley," which is reviewed in Prof. Hacker's article. Does Berkeley believe in a right to racial and ethnic non-discrimination? The report does not say. Though exceptionally candid concerning related issues that most administrators prefer to dissemble, the Berkeley report manages to avoid the question of a right to nondiscrimination. If such a right exists, is it violated and if so, how extensively, by the Berkeley admissions process as described? According to the report, Berkeley measures academic qualifications for admission by an ''academic index,'' combining high school grades and standardized test scores. For slightly more than half the applicants admitted, the decision depends entirely or predominantly on their academic index. The rest of those admitted belong to categories designated for preferential treatment, including athletes, graduates from rural high schools, the physically disabled and the economically disadvantaged, as well as blacks, Hispanics, American Indians and Filipinos. The preferential treatment consists in being selected, because of membership in a preferred group, over other applicants whose academic indexes are significantly higher. In the fall of 1988, out of 7730 admitted as Berkeley freshmen about 2300 received preferential admission because they were black, Hispanic, American Indian or Filipino. They were selected, because of their race or national origin, instead of 2300 white (non-Hispanic) and Asian (non- Filipino) applicants with significantly higher academic indexes. Thus, in one round of admissions at one university the right to racial or ethnic nondiscrimination, if it exists, was violated in the cases of 2300 persons. And this, by a narrow interpretation of what would constitute a violation, counting only those who were rejected as a result. A broader interpretation would hold that whenever people compete for a position and some, through discrimination, are advanced in the line over others, these others all suffer discrimination each time they are so displaced, whether they were ultimately chosen or not. The Berkeley report calculates that without preferential admission the combined total of blacks, Hispanics and American Indians would have been less than 4% of the entering class; with preferential admission it was 31%. Prof. Hacker is under the impression that the 31% represents a sudden, sharp increase, produced by a decision ''to waive the admission rules.'' On the contrary, the total for the three groups shows a steady increase from 11.9% in 1981 to 31.2% in 1988, with no change in the rules. For two decades Berkeley has automatically admitted all black, Hispanic and American Indian applicants who rank in the top eighth of their high school graduating class. The total of such applicants has steadily increased, and therefore their proportion of Berkeley's Freshman class. In the 1960s a powerful American consensus assumed that all persons have a moral and legal right to racial and ethnic nondiscrimination. If they do, Berkeley has flouted the law for twenty years, yet there have been no arrests. As an institution supported in part by federal money, Berkeley is subject to the Civil Rights Act of 1964, which forbids excluding, rejecting or otherwise discriminating against, on grounds of race or national origin, any applicant for admission. But this prohibition, though absolute on its face, has in effect been amended through executive and judicial interpretation, unchallenged by Congress, to permit racial and ethnic discrimination when it is part of an acceptable affirmative action plan. If such discrimination is now legal, is it moral? By their actions, Berkeley and thousands of other institutions now practicing racial and ethnic preference seem to say yes. I wish they would explain how their rule, that discrimination is wrong except when part of an affirmative action plan, differs from the much older rule, that discrimination is wrong except when the powers that be think it right. If their answer is that their affirmative action plans meet fair and impartial criteria, let the criteria be clearly specified. In particular, what principles determine which social ends justify discrimination and which do not? What qualifies a racial or ethnic group for preferential selection? What determines the degree of preference and how long it should continue? If any group is immune from being discriminated against, what qualifies it to be so? Also, I wish that the colleges and universities who have decided, for certain categories of their applicants, to deny the right to non-discrimination were honest enough to say so. For example, ''As compensation for past discrimination against (racial/ethnic groups A,B,C...) and to increase the proportional representation of (A,B,C...), this institution discriminates in favor of persons belonging to (A,B,C...) and against persons not belonging to (A,B,C...)'' In the course
of stating the principles guiding one of the country's most aggressive preferential
admission programs, the Berkeley report has the cheek to declare: ''Berkeley will
not tolerate discrimination in the application of any of the criteria governing
its admissions practices.'' The only way to make this statement true for Berkeley
in 1988 is to define discrimination in a way that would also make the statement
true for Jim Crow universities fifty years ago. [return to Table
of Contents] o o o o o o o o o o
After generations of struggle, involving people of every color, this nation finally accepted the right of every person not to be discriminated against with respect to education or employment on account of race or national origin. In the Civil Rights Acts of 1964, the Congress declared: ''No person in the United States shall, on the ground of race, color or national origin ... be subjected to discrimination under any program receiving Federal financial assistance.'' ''It shall be unlawful . . . for an employer .. . . to discriminate against any individual ... because of such individual's race, color ... or national origin.'' Nondiscrimination on grounds of race or national origin implies equal opportunity. The right to equal opportunity is not an equal right to be selected regardless of ability or character or previous education or experience, but an equal right to be considered on the basis of individual merit: race and national origin must not count for acceptance or rejection. The right to nondiscrimination is not restricted to blacks, Hispanics, or other racial or ethnic minorities: it belongs equally to every person within the jurisdiction of American law. Preferential selection, based on race or national origin, is squarely in conflict with nondiscrimination and equal opportunity. By preferential selection I mean admitting or hiring or promoting one person, because of his race or national origin, over another who is better qualified. No sooner had a national consensus been achieved in favor of nondiscrimination than some people rushed to abandon it. For over two decades, under the concept of affirmative action, members of designated racial or ethnic minorities (usually blacks, Hispanics, Asian-Americans and American Indians) have been receiving preferential selection in college and professional school admissions and in private and public employment. This is done in the name of compensating these minorities for past discrimination and of increasing their status and participation in American life. However, it is wrong to correct past injustice with present injustice: past violations of a fundamental right with more violations of the same right. Every year millions of people are victims of theft and worse crimes, but no one suggests that, as compensation, other people be licensed to steal in their behalf. Monetary damages, authorized by the courts or even the legislature, may be appropriate as compensation for past injustice. Remedial education of high quality at public expense may be needed to remove disabilities traceable to past discrimination. But to compensate old injustice with new simply piles crime on top of crime. It is argued that the principle of equality requires that blacks and Hispanics be present in substantial numbers in the more prestigious occupations and positions of our society. This view represents a confusion of thought that can be most harmful. Absent discrimination against these minorities, it is reasonable to expect that the number of their members in leading occupations will significantly increase. But no group or individual has a right that a particular percentage of lawyers, doctors, basketball players or ballerinas come from a particular racial or ethnic group. There is no right to any specific racial or ethnic balance, whether it be 50:50, 100:0, or anything in between. Most certainly
there is a right to racial or ethnic equality. But this is not a group right to
equal shares or proportions of the number selected: it is an individual right
to be considered on a par with other applicants regardless of race or national
origin. Whenever some racial or ethnic balance is pursued by means of preferential
selection, the result is not racial or ethnic equality, but inequality: advantages
to some persons and disadvantages to others, because of their race or national
origin. The rights to racial or ethnic equality, and to equality of opportunity,
are other ways of expressing the right to nondiscrimination. And the best way
to establish the right to nondiscrimination is to stop discriminating. o
o o o o o o o o o Letters published (unabridged) by the Charlottesville Daily Progress, the Chronicle of Higher Education, and Dissent Magazine are reprinted with permission. | |||||||||||||||||||||||