Debating Racial Preference - FISH + Rebuttal

REBUTTAL

"Reverse Racism, or How the Pot Got To Call the Kettle Black"
By Stanley Fish, from The Atlantic Monthly, November 1993

SHOULD RACIAL PREFERENCE BE GRANTED
TO BLACKS AND OTHER MINORITIES AS A REMEDY
FOR DISADVANTAGES DUE TO PAST DISCRIMINATION?

YES! Professor STANLEY FISH, in standard type: To argue that affirmative action, which gives preferential treatment to disadvantaged minorities as part of a plan to achieve social equality, is morally no different from the discrimination that created the disadvantages in the first place, is a travesty of reasoning. Merely to ban such discrimination would be an inadequate response to the disadvantages it produced.

NO! Interspersed REBUTTAL by Curtis Crawford, in italics: Although anti-black discrimination in America has been far worse than anti-white discrimination, both violate the moral right not to be discriminated against based on race. When people have been robbed, we do not authorize the victims to rob in return, or license others to steal in their behalf. Nor should racial discrimination be authorized as a remedy for racial discrimination.

"Reverse Racism"

I take my text from George Bush, who, in an address to the United Nations on September 23, 1991, said this of the UN resolution equating Zionism with racism: "Zionism . . . is the idea that led to the creation of a home for the Jewish people. . . . And to equate Zionism with the intolerable sin of racism is to twist history and forget the terrible plight of Jews in World War II and indeed throughout history." What happened in the Second World War was that six million Jews were exterminated by people who regarded them as racially inferior and a danger to Aryan purity. What happened after the Second World War was that the survivors of that Holocaust established a Jewish state--that is, a state centered on Jewish history, Jewish values, and Jewish traditions: in short, a Jewocentric state. What President Bush objected to was the logical sleight of hand by which these two actions were declared equivalent because they were both expressions of racial exclusiveness. Ignored, as Bush said, was the historical difference between them--the difference between a program of genocide and the determination of those who escaped it to establish a community in which they would be the makers, not the victims, of the laws.

An argument as to whether Zionism is a kind of racism is meaningless unless the two terms are defined. The brief excerpt from President Bush's address defines neither.

Only if racism is thought of as something that occurs principally in the mind, a falling-away from proper notions of universal equality, can the desire of a victimized and terrorized people to band together be declared morally identical to the actions of their would-be executioners. Only when the actions of the two groups are detached from the historical conditions of their emergence and given a purely abstract description can they be made interchangeable. Bush was saying to the United Nations, "Look, the Nazis' conviction of racial superiority generated a policy of systematic genocide; the Jews' experience of centuries of persecution in almost every country on earth generated a desire for a homeland of their own. If you manage somehow to convince yourself that these are the same, it is you, not the Zionists, who are morally confused, and the reason you are morally confused is that you have forgotten history."

Certainly, "the desire of a victimized and terrorized people to band together" is not "morally identical to the actions of their would-be executioners." What will Professor Fish infer from this premise?

A KEY DISTINCTION

What I want to say, following Bush's reasoning, is that *a similar forgetting of history has in recent years allowed some people to argue, and argue persuasively, that affirmative action is reverse racism.*

* The argument against affirmative action usually calls it "reverse discrimination, not "reverse racism." Prof. Fish muddles concepts by confusing "discrimination" with "racism." I suggest that "discrimination" is a difference in treatment, usually favoring one person at the expense of another. "Racial discrimination" is a difference in treatment based on race or ethnicity. "Preferential treatment" is discrimination as experienced by the person favored rather than the person disfavored. Thus, "preferential treatment" based on race is "racial discrimination." On the other hand, "racism" is the belief that one's own race is superior to other races and thereby entitled to rule over them. Racial discrimination is an action; racism, an attitude. Neither presupposes the other. Many who actually discriminate are not racists, and some who are racists do not actually discriminate.

To label affirmative action "reverse discrimination" does not forget history. On the contrary, the label invokes the nation's consensus, enshrined in the state and federal civil rights statutes of the 1950s and '60s, that no person in the United States should be subjected to racial discrimination in education, employment, government facilities, privately-owned public accommodations, housing, voting registration, etc.

The very phrase Reverse Racism contains the argument in exactly the form to which Bush objected: In this country whites once set themselves apart from blacks and claimed privileges for themselves while denying them to others. *Now, on the basis of race, blacks are claiming special status and reserving for themselves privileges they deny to others.* **Isn't one as bad as the other? The answer is no.**

* Most reverse discrimination is practiced in behalf of racial minorities, not by them. The practitioners include public and private universities, government agencies and private industry. It is true, of course, that such policies invite minorities to discriminate in behalf of themselves.

** Two instances of racial discrimination, though not equally bad, may both be wrong. Just as two instances of theft, fraud, embezzlement, assault or rape, though not equally bad, may both be wrong.

One can see why by imagining that it is not 1993 but 1955, and that we are in a town in the South with two more or less distinct communities, one white and one black. No doubt each community would have a ready store of dismissive epithets, ridiculing stories, self-serving folk myths, and expressions of plain hatred, all directed at the other community, and all based in racial hostility. Yet to regard their respective racisms—if that is the word--as equivalent would be bizarre, for the hostility of one group stems not from any wrong done to it but from its wish to protect its ability to deprive citizens of their voting rights, to limit access to educational institutions, to prevent entry into the economy except at the lowest and most menial levels, and to force members of the stigmatized group to ride in the back of the bus. The hostility of the other group is the result of these actions, and whereas hostility and racial anger are unhappy facts wherever they are found, a *distinction must surely be made between the ideological hostility of the oppressors and the experience-based hostility of those who have been oppressed.*

* This repeats the undisputed premise introduced in the first two paragraphs. The fallacies in Prof. Fish's argument are not in this premise, but in the conclusions he derives from it.

Not to make that distinction is, adapting George Bush's words, to twist history and forget the terrible plight of African-Americans in the more than 200 years of this country's existence. Moreover, to equate the efforts to remedy that plight with the actions that produced it is to twist history even further. Those efforts, designed to redress the imbalances caused by long-standing discrimination, are called affirmative action; to argue that affirmative action, which gives preferential treatment to disadvantaged minorities as part of a plan to achieve social equality, is no different from the policies that created the disadvantages in the first place is a travesty of reasoning.

The racial discrimination that long afflicted African-Americans was certainly far worse than the preferential treatment that now seeks to better their condition. Nevertheless, both are racial discrimination, which is banned in a host of state and federal statutes. Here are three key provisions of the U.S. Civil Rights Act of 1964:

§ 201 (a). All persons shall be entitled to the full and equal enjoyment . . . of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin.

§ 601. No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

§ 703 (a). It shall be an unlawful employment practice for an employer –(1) to fail or refuse to hire or to discharge . . . or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex or national origin.

Note that the right in these clauses not to be racially discriminated against belongs equally to all persons, regardless of race, white no less than nonwhite.

That a class of actions is forbidden by a moral or legal rule does not mean that every action that violates the rule is equally harmful or equally bad. The rule equates the actions only in the sense that they are equally forbidden. From a thousand possible examples, consider the rule against theft. Robbing a poor person of a large sum ordinarily does more harm than robbing a rich person of a small sum, but both actions violate the rule against theft, and are equally forbidden.

No one denies Prof. Fish's point that racial discrimination as affirmative action, favoring blacks over whites, has been less bad than historical racial discrimination, favoring whites over blacks. But the fact that something is less bad does not make it good. If Prof. Fish believes that racial discrimination is a positive good when used to redress "the imbalances caused by long-standing discrimination" in order "to achieve social equality," he should say so and tell us why.

Reverse Racism is a cogent description of affirmative action only if one considers the cancer of racism to be morally and medically indistinguishable from the therapy we apply to it. A cancer is an invasion of the body's equilibrium, and so is chemotherapy; but we do not decline to fight the disease because the medicine we employ is also disruptive of normal functioning. Strong illness, strong remedy: the formula is as appropriate to the health of the body politic as it is to that of the body proper.

This analogy with chemotherapy forthrightly suggests the destructive impact of reverse discrimination, but is it persuasive? Chemotherapy, though destroying other cells, may rid the body of cancer cells, at least for a time. Whereas reverse discrimination, though counteracting past discrimination, multiplies, by its actions and example, present and future discrimination.

At this point someone will always say, "But two wrongs don't make a right; *if it was wrong to treat blacks unfairly, it is wrong to give blacks preference and thereby treat whites unfairly."* This objection is just another version of the forgetting and rewriting of history. The work is done by the adverb "unfairly," which suggests two more or less equal parties, one of whom has been unjustly penalized by an incompetent umpire. But blacks have not simply been treated unfairly; they have been subjected first to decades of slavery, and then to decades of second-class citizenship, widespread legalized discrimination, economic persecution, educational deprivation, and cultural stigmatization. **They have been bought, sold, killed, beaten, raped, excluded, exploited, shamed, and scorned for a very long time.** The word "unfair" is hardly an adequate description of their experience, and ***the belated gift of "fairness" in the form of a resolution no longer to discriminate against them legally is hardly an adequate remedy for the deep disadvantages that the prior discrimination has produced.*** When the deck is stacked against you in more ways than you can even count, it is small consolation to hear that you are now free to enter the game and take your chances.

* Making the challenge more specific: If it was wrong to give whites preference, discriminating against blacks, it is wrong to give blacks preference, discriminating against whites.

** Let's be clear who "They" are. The blacks receiving racial preference in the last decade of the 20th century have not been "bought, sold or killed." If they have been "beaten or raped," it was more likely by other blacks. Whether their lives have much or more than others of being "excluded, exploited, shamed, and scorned" is not self-evident. On the other hand, although a goodly number of their ancestors were not black, most of their grandparents resided in the segregated South and many of their great, great grandparents were slaves.

*** I agree with Prof. Fish, that "a resolution no longer to discriminate" against blacks (as in the civil rights laws) is not "an adequate remedy for the deep disadvantages that the prior discrimination has produced." Let the disadvantages be specified, and appropriate remedies considered.

A TILTED FIELD

The same insincerity and hollowness of promise infect another formula that is popular with the anti-affirmative-action crowd: the formula of the level playing field. Here the argument usually takes the form of saying "It is undemocratic to give one class of citizens advantages at the expense of other citizens; the truly democratic way is to have a level playing field to which everyone has access and where everyone has a fair and equal chance to succeed on the basis of his or her merit." Fine words--but they conceal the facts of the situation as it has been given to us by history: *the playing field is already tilted in favor of those by whom and for whom it was constructed in the first place.* **If mastery of the requirements for entry depends upon immersion in the cultural experiences of the mainstream majority, if the skills that make for success are nurtured by institutions and cultural practices from which the disadvantaged minority has been systematically excluded,** if the language and ways of comporting oneself that identify a player as "one of us" are alien to the lives minorities are forced to live, then words like "fair" and "equal" are cruel jokes, for what they promote and celebrate is an institutionalized unfairness and a perpetuated inequality. The playing field is already tilted, and the resistance to altering it by the mechanisms of affirmative action is in fact a determination to make sure that the present imbalances persist as long as possible.

* The alleged tilt of the playing field, "in favor of those by whom and for whom it was constructed in the first place," has not stopped Jewish and Asian Americans from scoring as well or better than the alleged tilters.

** Racially segregated public schools would be prime examples of institutions that supposedly exclude minority students from the "cultural experiences of the mainstream majority." No one denies that such schools have been generally inferior and account for some of the black/white gap in academic performance. But for how much of the gap? In 1964, Congress directed the U.S. Commissioner of Education to "conduct a survey and make a report . . . concerning the lack of availability of equal educational opportunities for individuals by reason of race, color, religion or national origin in public educational institutions at all levels . . ." Civil Rights Act of 1964, § 402.

When completed, the survey and report were considered the second largest U.S. social science research project ever undertaken. The survey covered 570,000 school pupils, 60,000 teachers, and 4,000 schools in great detail.

The qualitative differences between black and white schools turned out to be smaller than expected. Here are a few examples. The comparisons are presented by showing the percentage of black or white students attending elementary or secondary schools with a given characteristic. (These examples are from James S. Coleman et al., Equal Educational Opportunity, Volume 1, [EEO 1] Tables 1-4, 6a, 6b, and 2.21.9., Washington, D.C.: 1966.)

Characteristic	Black (Ele)	White		Black (Sec)	White
Av # of Pupils per Teacher Av Teacher Salary ($1000s) Av Highest Degree (3 = B.A.) Av Teacher Verbal Score (30 items) Percent Black Teachers Percent White Teachers Accelerated Curriculum Regionally Accredited School School Library Av # of library books per pupil Full-time Librarian Auditorium Cafeteria Gymnasium Infirmary Biology Laboratory Chemistry Laboratory Physics Laboratory Language Laboratory	20 6.0 3.2 20 65 32 29 27 73 3.76 30 27 38 15 71	28 6.0 3.0 23 2 97 40 28 72 5.20 22 19 37 21 68		26 6.4 3.3 21 59 38 61 68 97 4.59 87 49 72 64 70 93 94 80 49	22 6.6 3.4 23 2 97 66 76 96 5.77 83 46 65 74 75 94 98 94 56

The impact of qualitative differences in schools was also smaller than expected. The report concluded that, when non-school factors are statistically controlled, "it appears that differences between schools account for only a small fraction of differences in pupil achievement." EEO 1, pp 21-22. The relative insignificance of the school effect is indicated by a table showing median test scores for black and white first and twelfth graders. The average gap of 9.3 standardized points between the two races at the beginning of first grade is 85% as large as the gap of 10.9 points at the beginning of twelfth grade. EEO 1, Table 9, p 20. Thus, a "small fraction" of the gap may reasonably be attributed to inferior schools, but the greater part was already there the first day of class.

Prof. Fish's assumption that institutions such as racially segregated schools were producing the gap in the academic performance of black and white college and professional school applicants is thus robustly contradicted by comprehensive data that had been publicly available long before he wrote. He will not argue that the degree of segregation or the relative inferiority of predominantly black schools had increased between 1965 and 1993.

One way of tilting the field is the Scholastic Aptitude Test. This test figures prominently in Dinesh D'Souza's book Illiberal Education (1991), in which one finds many examples of white or Asian students denied admission to colleges and universities even though their SAT scores were higher than the scores of some others — often African-Americans — who were admitted to the same institution. This, D'Souza says, is evidence that as a result of affirmative-action policies colleges and universities tend "to depreciate the importance of merit criteria in admissions." D'Souza's assumption--and it is one that many would share--is that the test does in fact measure merit, with merit understood as a quality objectively determined in the same way that body temperature can be objectively determined.

The academic "merit" measured by the SAT is the verbal and mathematical reasoning ability that students need for academic work. In doing this, the test has been a good predictor of college performance. According to studies by the College Board, which administers the SAT, its correlation with first-year college grades is 52% at moderately selective colleges and 61% at highly selective colleges. (A correlation of 100% would mean a perfect predictor; 0%, a total failure.) Although these studies occurred after Prof. Fish's essay, they are consistent with the data available to him.

[See the Bakke amicus briefs elsewhere on this site of the Association of American Law Schools and the Law School Admissions Council (strong proponents of race-based affirmative action) concerning the predictive validity of a similar test, the LSAT.]

In fact, however, the test is nothing of the kind. Statistical studies have suggested that *test scores reflect income and socioeconomic status.* It has been demonstrated again and again that scores vary in relation to cultural background; **the test's questions assume a certain uniformity in educational experience and lifestyle and penalize those who, for whatever reason, have had a different experience and lived different kinds of lives.** In short, ***what is being measured by the SAT is not absolutes like native ability and merit but accidents like birth, social position, access to libraries, and the opportunity to take vacations or to take SAT prep courses.***

* True, but the correlation between SAT scores and socioeconomic status is not dominant: students from the same family or at the same socioeconomic level have widely different scores; white students from low income families do as well as black students from high income families.

** Prof. Fish is accusing the SAT of cultural bias against blacks and other racial minorities. If this were so, it would be easy to prove. One need only demonstrate that it underpredicts minority performance as compared to whites. Fish does not make this claim, nor would the facts sustain him if he had. Indeed, William Bowen and Derek Bok, in their pro-affirmative action book, The Shape of the River, conclude that the SAT overpredicts black college performance.

*** "What is being measured by the SAT" is academic skills that are highly predictive of academic performance and happen also to have some correlation with the "accidents" named by Prof. Fish. Does he deny the relevance of academic skills to academic performance? Does he believe that selective institutions should ignore SAT scores in deciding which applicants are most able to learn what the college has to teach?

Furthermore, as David Owen notes in None of the Above: Behind the Myth of Scholastic Aptitude (1985), *the "correlation between SAT scores and college grades .... is lower than the correlation between weight and height;* in other words you would have a better chance of predicting a person's height by looking at his weight than you would of predicting his freshman grades by looking only at his SAT scores." Everywhere you look in the SAT story, the claims of fairness, objectivity, and neutrality fall away, to be replaced by suspicions of specialized measures and unfair advantages.

* Notice that Prof. Fish does not quantify either correlation. I do not know the correlation between weight and height, but if it is more than 60%, it is higher than I realized.

Why does he trash the SAT? Lower minority SAT scores do not prevent colleges from granting the preferential admissions that Prof. Fish favors. Indeed, the preference consists precisely in accepting minority applicants with test scores, grades and/or other academic qualifications that would be unacceptable in white applicants. If, like many supporters of affirmative action, Prof. Fish pretended that no preference is involved, one could understand his hostility to the SAT. But he frankly admits that affirmative action involves racial preference. It is true that, by quantifying the differences in admission standards, it makes them harder to deny or ignore. Perhaps he hates the test not for exposing the existence of preference, but its magnitude.

Against this background a point that in isolation might have a questionable force takes on a special and even explanatory resonance: *the principal deviser of the test was an out-and-out racist.* In 1923 Carl Campbell Brigham published a book called A Study of American Intelligence, in which, as Owen notes, he declared, among other things, that we faced in America "a possibility of racial admixture . . . infinitely worse than that faced by any European country today, for we are incorporating the Negro into our racial stock, while all of Europe is comparatively free of this taint." Brigham had earlier analyzed the Army Mental Tests using classifications drawn from another racist text, Madison Grant's The Passing of the Great Race, which divided American society into four distinct racial strains, with Nordic, blue-eyed, blond people at the pinnacle and the American Negro at the bottom. Nevertheless, in 1925 Brigham became a director of testing for the College Board, and developed the SAT. So here is *the great SAT test, devised by a racist in order to confirm racist assumptions, measuring not native ability but cultural advantage, an uncertain indicator of performance, an indicator of very little except what money and social privilege can buy.* And it is in the name of this mechanism that we are asked to reject affirmative action and reaffirm "the importance of merit criteria in admissions."

* Having failed to substantiate his criticism of the SAT, Prof. Fish yells "racist." Carl Brigham was indeed the "principal deviser" of the SAT, and held for a time the racial opinions Fish attributes to him. Did this make him an "out-and-out racist"? Not by my definition above, which requires the belief not only that one's own race is superior, but also that it should rule over others. Moreover, by 1930 Prof. Brigham had dropped the racial conclusions of his earlier research, and had decided that the SAT was unable to disentangle the effects of innate intelligence and of environmental and developmental factors.

The sticking point for Prof. Fish is the notion of differences in innate capacity. At least where scholastic aptitude is concerned, he apparently believes that the only significant differences between individuals are differences that "money and social privilege can buy." Since inborn talent cannot be bought, he must believe that individuals do not differ significantly in their inborn talent for academic work. I suspect, on the contrary, that most educators who have assigned the SAT, and most students who have taken it, assume that human beings differ substantially in their innate capacity for verbal and mathematical reasoning, and that these differences affect SAT scores. I share this assumption. To deny it is to disregard the everyday experience of great differences in the abilities of children living in the same family or at the same economic and social level, and the scientific studies of identical twins, reared apart, who are more like each other than the families where they grew up.

Most people readily accept that they were not born as smart as Shakespeare or Einstein. The problem arises when standardized test scores indicate that one racial or ethnic group, on average, is smarter than another. This must be why Prof. Fish hates the SAT. Although the gap between black and white scores has decreased, it remains substantial. Does this gap demonstrate a group difference in innate capacity? Not necessarily, since it might be the result of systemic environmental or cultural factors. But the gap is stubborn, and not unique. If the scores of Jewish students were counted separately, their verbal SAT average might be as far above whites as blacks are below. There is no natural law requiring that the mean innate capacity for verbal and mathematical reasoning be the same in every racial or ethnic group.

Near the end of the section, "A Key Distinction," Prof. Fish declared that a national resolution to stop discriminating against blacks was an insufficient remedy for the disadvantageous effects of prior discrimination. I agreed, hoping that he would specify the disadvantages he had in mind, and then the remedies he deemed appropriate. In the next section, "The Tilted Field," he has named some general cultural factors that variously affect minority groups and has roundly condemned the SAT, but he has not specified the black disadvantages he has in mind, the extent to which they result from past discrimination, or the best remedies. We know that he favors affirmative action for blacks, but whether this is the right solution depends in part on a clear understanding of the problem.

Thus far, in three important respects, Prof. Fish's understanding has proved mistaken. Contrary to his assumptions: (1) racially segregated schools have not been a substantial cause of inferior black academic performance in recent decades; (2) the SAT does a reasonably good job of assessing verbal and mathematical skills, and predicting college grades; (3) the SAT is not biased against blacks: indeed, it overpredicts their college performance.

THE REALITY OF DISCRIMINATION

Nevertheless, there is at least one more card to play against affirmative action, and it is a strong one. Granted that the playing field is not level and that access to it is reserved for an already advantaged elite, the disadvantages suffered by others are less racial--at least in 1993--than socioeconomic. Therefore shouldn't, as D'Souza urges, "universities . . . retain their policies of preferential treatment, but alter their criteria of application from race to socioeconomic disadvantage," and thus avoid the unfairness of current policies that reward middle-class or affluent blacks at the expense of poor whites? One answer to this question is given by D'Souza himself when he acknowledges that *the overlap between minority groups and the poor is very large--a point underscored by the former Secretary of Education Lamar Alexander, who said, in response to a question about funds targeted for black students, "Ninety-eight percent of race-specific scholarships do not involve constitutional problems." He meant, I take it, that 98 percent of race-specific scholarships were also scholarships to the economically disadvantaged.*

* The "overlap between minority groups and the poor" is large, but nowhere near 98%. Professor Thomas Kane gives the figures for American high-school graduates in 1992, living in families with incomes below $20,000 a year. Only 47% were black or Hispanic, while 53% were white or other non-Hispanic. If college admissions preference were based on this criterion of economic disadvantage, without regard for academic qualifications, blacks and Hispanics would receive half the slots. But the ratio would fall if SAT scores were a factor. The proportion of high school graduates from such families whose SAT scores were in the top tenth percentile was only 17%. Thus, most preferences by selective colleges based solely on economic disadvantage would go to whites and Asians. [See Christopher Jencks and Meredith Phillips, eds, The Black-White Test Score Gap, Brookings Institution Press, Washington, D.C.: 1998, p 449.]

Still, the other two percent--nonpoor, middle-class, economically favored blacks--are receiving special attention on the basis of disadvantages they do not experience. What about them? The force of the question depends on the assumption that in this day and age race could not possibly be a serious disadvantage to those who are otherwise well positioned in the society. But the lie was given dramatically to this assumption in a 1991 broadcast of the ABC program PrimeTime Live. In a stunning fifteen-minute segment reporters and a camera crew followed two young men of equal education, cultural sophistication, level of apparent affluence, and so forth around St. Louis, a city where neither was known. The two differed in only a single respect: one was white, the other black. But that small difference turned out to mean everything. In a series of encounters with shoe salesmen, record-store employees, rental agents, landlords, employment agencies, taxicab drivers, and ordinary citizens, the black member of the pair was either ignored or given a special and suspicious attention. He was asked to pay more for the same goods or come up with a larger down payment for the same car, was turned away as a prospective tenant, was rejected as a prospective taxicab fare, was treated with contempt and irritation by clerks and bureaucrats, and in every way possible was made to feel inferior and unwanted.

The *inescapable conclusion* was that alike though they may have been in almost all respects, one of these young men, because he was black, would lead a significantly lesser life than his white counterpart: he would be housed less well and at greater expense; *he would pay more for services and products when and if he was given the opportunity to buy them;* he would have difficulty establishing credit; the first emotions he would inspire on the part of many people he met would be distrust and fear; his abilities would be discounted even before he had a chance to display them; and, above all, the treatment he received from minute to minute would chip away at his self-esteem and self-confidence with consequences that most of us could not even imagine. As the young man in question said at the conclusion of the broadcast, "You walk down the street with a suit and tie and it doesn't matter. Someone will make determinations about you, determinations that affect the quality of your life."

* "Inescapable conclusion"? From one television report? Has this veteran scholar no higher standards for the data necessary to establish solid, realistic empirical judgments? The country is full of stores selling food, appliances and clothing at standard prices. Does Prof. Fish truly believe that blacks have to "pay more for services and products" in these stores and may not be "given the opportunity to buy them"?

Still, after discounting the exaggerations, I assume that discrimination based on race and ethnicity is persistent and widespread: not only white against black, but black against white, native against immigrant, immigrant against native or against immigrant of different ethnicity, black against Hispanic or Asian, Hispanic against black or Asian or white, Asian against black or Hispanic or white, white against white in behalf of black, Hispanic or American Indian. Nor is this list exhaustive.

Present-day racial discrimination is certainly a disadvantage for all who suffer it. But if that is the problem, is additional discrimination—by higher education, corporate enterprise and government—a solution? To counteract wrongful discrimination, Prof. Fish would have America command and teach its citizens that racial or ethnic discrimination should proceed against some groups (whites, also Asians?) and cease against others (blacks, also Hispanic and Native Americans?) Does he believe that a nation can successfully teach its citizens that racial discrimination is unjust, while thus fostering it?

In 1992, a low-crime year, the U.S. Department of Justice estimated that Americans had suffered more than 28 million cases of theft: burglary, larceny or robbery. As a remedy, should we have authorized the victims to steal in return, or licensed others to steal in their behalf? The same year saw more than 5 million cases of assault: simple or aggravated. To feel the wrong in just a handful of these cases must render a decent person miserable and furious. Yet we are wise enough not to remedy assault with more assault. [The victimization figures are at page 203 of Statistical Abstract of the United States 1994.]

The virtue of racial nondiscrimination is not inborn: it is a habit, not easily formed, that must be cultivated. America has made great progress against the vices of ethnic discrimination in the 19th Century, and of racial discrimination in the 20th Century. Around the world and throughout history, nations that failed to curb these vices have borne witness to their cruel and heartbreaking consequences.

Of course, the same determinations are being made quite early on by kindergarten teachers, grade school principals, high school guidance counselors, and the like, with results that cut across socioeconomic lines and place young black men and women in the ranks of the disadvantaged no matter what the bank accounts of their parents happen to show. Racism is a cultural fact, and although its effects may to some extent be diminished by socioeconomic variables, those effects will still be sufficiently great to warrant the nation's attention and thus the continuation of affirmative-action policies. This is true even of the field thought to be dominated by blacks and often cited as evidence of the equal opportunities society now affords them. I refer, of course, to professional athletics. But national self-congratulation on this score might pause in the face of a few facts: A minuscule number of African-Americans ever receive a paycheck from a professional team. Even though nearly 1,600 daily newspapers report on the exploits of black athletes, they employ only seven full-time black sports columnists. Despite repeated pledges and resolutions, major-league teams have managed to put only a handful of blacks and Hispanics in executive positions.

WHY ME?

When all is said and done, however, one objection to affirmative action is unanswerable on its own terms, and that is the objection of the individual who says, "Why me? Sure, discrimination has persisted for many years, and I acknowledge that the damage done has not been removed by changes in the law. But why me? I didn't own slaves; I didn't vote to keep people on the back of the bus; I didn't turn water hoses on civil-rights marchers. Why, then, should I be the one who doesn't get the job or who doesn't get the scholarship or who gets bumped back to the waiting list?"

I sympathize with this feeling, if only because in a small way I have had the experience that produces it. I was recently nominated for an administrative post at a large university. Early signs were encouraging, but after an interval I received official notice that I would not be included at the next level of consideration, and subsequently I was told unofficially that at some point a decision had been made to look only in the direction of women and minorities. Although I was disappointed, I did not conclude that the situation was "unfair," because the policy was obviously not directed at me--at no point in the proceedings did someone say, "Let's find a way to rule out Stanley Fish." *Nor was it directed even at persons of my race and sex--the policy was not intended to disenfranchise white males. Rather, the policy was driven by other considerations, and it was only as a by-product of those considerations--not as the main goal--that white males like me were rejected. Given that the institution in question has a high percentage of minority students, a very low percentage of minority faculty, and an even lower percentage of minority administrators, it made perfect sense to focus on women and minority candidates, and within that sense, not as the result of prejudice, my whiteness and maleness became disqualifications.*

* Prof. Fish argues here that racial discrimination is not "unfair" if, free from prejudice, it serves a reasonable purpose. But what would be a reasonable purpose? In the section, A Key Distinction, he maintained and I agreed that barring racial discrimination against blacks was not a sufficient remedy for the disadvantages they had suffered from past discrimination. Building on that premise he might have proceeded to specify these disadvantages, along with remedies for overcoming them. But his essay has not taken that path.

Let us, then, for a general idea of what Fish considers a reasonable purpose, return to the first page of the essay. There he suggests that different treatment based on race or ethnicity is justified when its purpose is "to redress the imbalances caused by long-standing discrimination" in order "to achieve social equality."

Has Prof. Fish given much thought to the scope of this doctrine and the kinds of policies it would authorize? Of many possible applications, let me mention three.

·	The income of African, Hispanic and Native Americans is lower than white income. This is partly due to past discrimination against these groups. Therefore, they should receive a substantial discount, say 20%, on everything they buy.
·	The crime rates of African, Hispanic and Native Americans are higher than white rates. This is partly due to past discrimination against these groups. Therefore, different standards should be adopted, making it harder to convict members of these groups, and giving them lighter sentences when found guilty.
·	The proportion of African, Hispanic and Native Americans elected to Congress and the State legislatures is smaller than their share of the population. This is partly due to past discrimination against these groups. Therefore, each member of these groups should have an extra vote in any election to these offices.

If the reader has misgivings concerning any of these proposals, let him look to the doctrine from which they directly spring.

I can hear the objection in advance: "What's the difference? Unfair is unfair: you didn't get the job; you didn't even get on the short list." The difference is not in the outcome but in the ways of thinking that led up to the outcome. It is the difference between an unfairness that befalls one as the unintended effect of a policy rationally conceived and an unfairness that is pursued as an end in itself. It is the difference between the awful unfairness of Nazi extermination camps and the unfairness to Palestinian Arabs that arose from, but was not the chief purpose of, the founding of a Jewish state.

THE NEW BIGOTRY

The point is not a difficult one, but it is difficult to see when the unfairness scenarios are presented as simple contrasts between two decontextualized persons who emerge from nowhere to contend for a job or a place in a freshman class. Here is student A; he has a board score of 1,300. And here is student B; her board score is only 1,200, yet she is admitted and A is rejected. Is that fair? Given the minimal information provided, the answer is of course no. But if we expand our horizons and consider fairness in relation to the cultural and institutional histories that have brought the two students to this point, histories that weigh on them even if they are not the histories' authors, then both the question and the answer suddenly grow more complicated.

The sleight-of-hand logic that first abstracts events from history and then assesses them from behind a veil of willed ignorance gains some of its plausibility from another key word in the anti-affirmative-action lexicon. That word is "individual," as in "The American way is to focus on the rights of individuals rather than groups." Now, "individual" and "individualism" have been honorable words in the American political vocabulary, and they have often been well employed in the fight against various tyrannies. But like any other word or concept, individualism can be perverted to serve ends the opposite of those it originally served, and this is what has happened when in the name of individual rights, millions of individuals are enjoined from redressing historically documented wrongs. How is this managed? Largely in the same way that the invocation of fairness is used to legitimize an institutionalized inequality. *First one says, in the most solemn of tones, that the protection of individual rights is the chief obligation of society. Then one defines individuals as souls sent into the world with equal entitlements as guaranteed either by their Creator or by the Constitution.* Then one pretends that nothing has happened to them since they stepped onto the world's stage. And then one says of these carefully denatured souls that they will all be treated in the same way, irrespective of any of the differences that history has produced. Bizarre as it may seem, individualism in this argument turns out to mean that everyone is or should be the same. This dismissal of individual difference in the name of the individual would be funny were its consequences not so serious: it is the mechanism by which imbalances and inequities suffered by millions of people through no fault of their own can be sanitized and even celebrated as the natural workings of unfettered democracy.

* The "individual rights" whose protection is a major "obligation of society" are guaranteed neither by God nor the Constitution but by statute. When the law bans racial discrimination, theft, fraud, embezzlement, physical assault, rape, etc., duties are created not to perform these actions, along with corresponding rights not to be subjected to them. Grant an individual the right not to be robbed and you protect him not only against the wicked, but also against the "well-intentioned," who otherwise might rob him to advance some notion of the greater good.

Life is full of rationalizations by which people advance their ideals or their own advantage at others' expense. The recognition of individual rights, a mark of civilization older than the Ten Commandments, provides a necessary envelope of personal security. By placing certain means out of bounds, no matter how estimable the ends they might serve, society secures the individual's freedom to be and to thrive.

"Individualism," "fairness," "merit"--these three words are continually misappropriated by bigots who have learned that they need not put on a white hood or bar access to the ballot box in order to secure their ends. Rather, they need only clothe themselves in a vocabulary plucked from its historical context and made into the justification for attitudes and policies they would not acknowledge if frankly named.

Certainly, the individual right not to be racially discriminated against, the unfairness of such discrimination no matter whom the target, and the desirability of treatment based on individual merit, are watchwords of the opposition to racial preference. Prof. Fish concludes by smearing this opposition as racist. Is this tactic a backhanded admission that his arguments are weak. I think, on the contrary, that he is confident of being right, but calculates that the most effective means of persuading the reader is to brand the other side with a scarlet R.

Having agreed with Prof. Fish that disadvantages due to past discrimination need remedies, I have wished him to be specific concerning such disadvantages and a fitting response. Since he has not, I shall—briefly, by way of conclusion.

The average performance of black, Hispanic and Native Americans on standardized ability and achievement tests, as well as in school and college courses, is well below the national average. This disadvantage stands as a major obstacle to success in education, business, the professions and government. Some portion of this disadvantage—no one knows how much—is due to past discrimination.

I propose that summer academies be established to give high-quality, supplemental instruction at the grade and high-school level. Primarily for students who attend incompetent schools, the academies would be open to anyone, regardless of race, who wished to improve his education. The academies could be sponsored by government at the federal, state or local level, as well as by colleges and universities. The goals would not be racial (such as ending performance gaps between groups), but individual (helping each student to reach his potential). Those most benefited by this proposal would presumably be those who start with the greatest prior disadvantage.

Thus, although the disadvantage stems in part from racial discrimination, the remedy need not and should not be more discrimination. I do not claim that discrimination based on race or ethnicity is wrong in every circumstance. It may sometimes be necessary for national or cultural survival, as in the Zionist example cited at the beginning of Prof. Fish's essay. But racial discrimination is ordinarily the wrong path, which Fish offers no good reason for taking. Indeed, if the criterion be national or cultural survival, it would be far better served by rejecting—not condoning—racial discrimination.

Home