Affirmative Action for Elites . . . Not that there's anything wrong with that

In his popular course about justice, Michael Sandel spends a class session discussing with the students the modern debate about affirmative action.  As he invites the students to offer their views on the subject, the discussion soon reflects the same arguments we have now rehearsed for over a generation: the practice of affirmative action is either unfair and discriminatory, or else needed to correct past injustices or the way to attain a diverse student body.  This is not terribly surprising.  But one student in particular caught my attention. He argued that

 "racial discrimination is illegal in this country, and I believe that it was African-American leaders themselves, when Martin Luther King said he wanted to be judged not on the color of his skin, but by the content of his character, his merit, his achievement, and I just think that to decide solely based on someone's race is just inherently unfair.  I mean, if you want to correct based on disadvantaged backgrounds, that's fine, but there are also disadvantaged white people as well.  It shouldn't matter . . ." 

The student conceded, in response to a question from Sandel, that grades and tests scores are not enough; "there is more than that.  Universities need to promote diversity."  His objection focused on the one factor, race, that he argued applicants could not control.

There is a lot in that exchange, and again, there is really nothing new there. But later in the conversation, in response to a point to a student, Sandel asked about legacy admissions.  Should those exist?  Are they fair? These were uncomfortable, difficult questions, and the student's response reflected that fact.

"I do believe that, in terms of a legacy admission, you shouldn't have a special preference, I mean, there is a legacy admission, you could argue, as another part of diversity.  You could say it's important to have a small percentage of people that have just several generations of their family attend a place like Harvard."

Even while saying this, the student wasn't hedging.  Race was just different.  To him, legacy considerations  "should not be an advantage factor like race.  That should just be another part of promoting diversity." Sandel pushed him one final time, and asked him whether "alumni status, should it count at all." The student paused a moment, and then, unsurprisingly,  said "yes. it should count."

This is the ugly underside of the debate over racial preferences and university admissions.  Richard Kahlenberg, a longstanding participant in this debate, argues in this morning's New York Times that legacy admissions are the biggest affirmative action program in the country.  He argues that they are bad policy, illegal, unconstitutional, and unknown around the world.  To the charge that legacy is often used as a tiebreaker among applicants, he offers a recent study that concluded that legacy standing is the equivalent of 160 points on the SAT (on a 400 to 1600 point scale), which is close to the gain attributed to racial factors.

Where are the marches and lawsuits fighting against this injustice?  Where is Ward Connerly when you need him?  And how do we explain the contrasting reactions?  Or put another way, can we conclude, with any degree of certainty, that criticisms of affirmative action are tinged, at some level, by racism?

I have two reactions.

First, I am often at a loss to explain these different reactions to college admissions.  It is clear that colleges take many factors into account, and we should want them to do exactly that.  But why is it that we focus so much attention on only one factor -- race -- at the expense of all others?  The easy answer is that the 14th Amendment forbids racial "discrimination."  But that's clearly wrong, at least if we are bound by the text of the Amendment, or its legislative history, or the intent of its framers.  To begin, we know that the text of the Amendment does not speak in racial terms at all,and further, we also know that the very Congress that drafted and submitted the amendment to ratification also had a number of governmental programs that awarded public goods to former slaves qua freemen.  That is, these programs gave former slaves benefit because of the fact that they were former slaves.  There goes the colorblind principle.

Hence, the only way to make sense of the modern Court's approach to the use of race by state actors is by adhering to the same vision of the living constitution often derided by conservative critics, including the late Chief Justice Rehnquist and Justice Scalia. If influenced by the very tools of constitutional interpretation they profess to use in other context, the argument makes no sense.

The second argument is far simpler: stripped to its essence, the affirmative action debate is a debate about policy, about the costs and benefits of the use of race by state actors.  This becomes clear upon reading any argument against of racial preferences.  They are, among other things, bad for the people they intend to benefit; unfair to whites; stigmatizing; a moral wrong; and so on.  To the critics, this automatically means that affirmative action is unconstitutional.  To which I only have one response:

Long live judicial activism.