[Le]Manning the Barricades for Affirmative Action

Nicholas Lemann, former dean of the Columbia School of Journalism, currently a professor there, and author of The Big Test: The Secret History of American Meritocracy (2000), has a long new article in the New Yorker, “Can Affirmative Action Survive?,” warning ominously—or hopefully, depending on your point of view—that “The Court may signal that it considers efforts aimed explicitly at racial equity to be unconstitutional.”

He is referring to the Harvard case, which the Supreme Court is considering whether to hear, but that case concerns whether Harvard discriminates against Asians and whites, not “racial equity.” For Lemann, the New Yorker, and the woke conventional wisdom of which they are emblematic, discrimination no longer matters. What matters is “disparity,” anywhere and everywhere, whether it has been caused by discrimination or not, and discrimination is perfectly acceptable, even required, if necessary, to create “parity,” which usually means proportional representation. Of course, discrimination to produce parity is rarely called discrimination; it is characterized by such circumlocutions as, well, “efforts aimed explicitly at racial equity.”

Because Lemann’s article is so emblematic of elite opinions on race, it is likely to be influential and thus deserves careful attention. As a first step in that direction, I have pulled a few examples of his observations that should be challenged. They appear below, in italics, followed by my responses.

There is little common ground between people who see explicitly racial remedies as justifiable and necessary and people who see them as morally indistinguishable from the Jim Crow laws.

I am pretty familiar with all of the arguments (and arguers) against affirmative action, and I don’t know one who believes that affirmative action is “morally indistinguishable” from Jim Crow laws, a slur that is no more defensible than President Biden’s claim that requiring voter ID is “Jim Crow in the 21^st Century.”

As he [James Bryant Conant, Harvard president who promoted the SAT] perceived it, standardized tests would bring to the best universities the most talented students, who would go on to become highly influential public servants. This position wasn’t completely wrong.

Not completely wrong? Vastly overstated, even by Lemann’s own view of right and wrong. That standardized tests failed “to create a classless society” is hardly a reason to describe as “not completely wrong” Conant’s policy of using tests to widen the application net Harvard tossed beyond New England prep schools to include people of talent from all walks of life.

The plaintiffs based their legal arguments on two landmarks in the country’s historic quest for racial justice, the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1964, both of which forbade racial discrimination. Those measures were aimed at helping Black people, but, the plaintiffs argued, they applied equally to white people who had been rejected even though their test scores were higher than those of admitted Black applicants. In these lawsuits, admissions based on standardized test scores had risen to the level of a constitutional right.

Those measures were, of course, aimed at helping black people, but they were more than that; they more broadly aimed at ridding the nation of discrimination based on race. It has been clear from the Civil Rights Act of 1866, the 14^thAmendment, and multiple Supreme Court opinions that civil rights protections are not limited to blacks.

For example, McDonald v. Santa Fe Trail Transp. CO. (1976), in a majority opinion written by, of all people, Justice Thurgood Marshall:

The bill ultimately enacted as the Civil Rights Act of 1866 was introduced by Senator Trumbull of Illinois as a “bill . . . to protect all persons in the United States in their civil rights . . . .” While it is, of course, true that the immediate impetus for the bill was the necessity for further relief of the constitutionally emancipated former Negro slaves, the general discussion of the scope of the bill did not circumscribe its broad language to that limited goal. On the contrary, … in the closing debate in the Senate … Senator Trumbull said: “Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights.” … The 39^thCongress [Justice Marshall held] was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves.”

Another Marshall statement from that opinion, quoting Griggs v. Duke Power (1971), which gave us disparate impact, and the EEOC (1973):

Title VII of the Civil Rights Act of 1964 … [is] not limited to discrimination against members of any particular race. Thus, … we described the Act in Griggs v. Duke Power Co, as prohibiting “[d]iscriminatory preference for any [racial] group, minority or majority” (emphasis added). Similarly, the EEOC, whose interpretations are entitled to great deference, has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites….

In Bakke (1978), Justice Lewis Powell emphatically reinforced Justice Marshall’s McDonald holding that whites, as well as blacks, are protected by constitutional and legislative civil rights protections.

The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal…. The guarantees of equal protection [Powell wrote, quoting Yick Wo v. Hopkins(1886)] “are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” [Emphasis added]

Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white “majority” cannot be suspect if its purpose can be characterized as “benign.” The clock of our liberties, however, cannot be turned back to 1868…. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others. “The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’—that is, based upon differences between ‘white’ and Negro.”

The argument that anti-discrimination principle and law applies to whites and Asians as well as blacks, in short, is not something cooked up by anti-affirmative action activists, something only “the plaintiffs argued.”

Moreover, to claim that the plaintiffs’ argument, here or elsewhere, amounted to a claim that “admissions based on standardized test scores had risen the level of constitutional right” is absurd, and insulting. The constitutional right is that discrimination based on race is wrong. There is no constitutional right to admission based solely on test scores, and no one I know argues that there is.

Considering diversity to be the only permissible model appears to regard greater numbers of Black students on campus primarily as a way to broaden the experience of white students, and it fails to recognize the historical debt the country owes to Black people.

The stated rationale for “diversity”-based discrimination has always been to benefit whites exposed to the preferentially admitted blacks (the blacks don’t need to attend more selective institutions than they would without preference to receive whatever benefits diversity has to offer). Moreover, accumulating evidence of mismatch shows that the “beneficiaries” pay a high cost—lower grades, higher dropout rates, and a greater sense of inferiority. Even Lemann mentions David Garrow’s point that Obama refused to check the black box when applying for law review because he didn’t want to be thought of as an affirmative action hire. None of that, of course, is sufficient to lead Lemann et al. to oppose racial preferences. But to say that it misses the point of “the historical debt the country owes” to blacks itself misses the obvious point that one can acknowledge such a debt without leaping to the conclusion that lowering standards for admission and hiring is an appropriate, or even sensible, way to repay it.

In the 1982 book “Liberalism and the Limits of Justice,” the Harvard philosopher Michael Sandel imagined this letter being written to a rejected applicant: “It is not your fault that when you came along society happened not to need the qualities you had to offer. Those admitted instead of you were not themselves deserving of a place, nor worthy of praise for the factors that led to their admission. We are in any case only using them—and you—as instruments of a wider social purpose.”

I have criticized Sandel several times. His argument, as I pointed out here, is that “admission is not an honor bestowed to reward superior virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted.” Yes, but as I then argued, Sandel “confuse[s] not having a right to attend the school of one’s choice (which is true) with not having a right not to be excluded based on race (which is not true). What a sad and bedraggled thing liberalism has become.”

As the Supreme Court has moved in the direction of what its conservative members consider color blindness, real life, at least for Black people who are poor or close to it, has remained highly color-conscious—maybe increasingly so.

This is a ubiquitous misconception. Colorblind policy, aka equal treatment, non-discrimination, etc., does not require blindness to color or to the presence of discrimination. It simply requires not treating some better and others worse because of race. Being “conscious of color,” in any event, is a euphemism for giving preference based on color. Admissions officers don’t simply notice color; they reward and punish it.

These interrelated realities, all of which rest on a foundation of laws and policies, are what people mean when they talk about structural racism.

And this shows how hollow that concept is, for it doesn’t explain why “these interrelated realities”—segregated, poor neighborhoods, etc.—are the result of continuing discrimination. It amounts to an argument that disparities are not evidence but proof of inequity, and that the only acceptable remedy is “equity,” i.e., eliminating disparities by discriminating against Asians and whites until “parity” is achieved.

Someone—not a journalist, but someone who is informed and open-minded—should ask the woke equitarians for their response to the fact that the most underrepresented racial group at the University of California is … whites. Blacks were 5% of California high school graduates in 2020 and 5% of the 2021 UC freshman admits. Whites, by contrast, were 24% of 2020 high school graduates but only 20% of 2021 freshman admits. As I pointed out in “Affirmative Action: R.I.P. Or Release 3.0,” published in the Summer 2021 issue of Academic Questions, white entering freshmen at Berkeley were 47% of what “equity” advocates regard as parity—a proportion equal to their proportion of the California population. By contrast, Hispanics were at 54% and blacks at 57%. Numbers from Washington state were similar.

In Black America, segregation mostly hasn’t worked, and integration mostly has worked. That’s why it is so perilous for the Court to decree that any policy aimed at increasing integration—in education, in housing, in people’s economic lives—is unconstitutional.

Forget fact-checkers; does the New Yorker no longer have editors? Apparently, it has neither (or none who is not so woke as to be blind), since neither would have allowed an author to assert that the current Court decrees “that any policy aimed at increasing integration — in education, in housing, in people’s economic lives — is unconstitutional.” Lemann thus appears to believe that any policy “aimed at increasing integration”—even policies that openly and egregiously reward minorities (until “parity” is reached, of course) at the expense of Asians and whites—should pass constitutional muster. Heaven help us if justices Lemann would approve ever become a majority of the Court again.

I asked her why, if the central goal is helping Black people who are in real need, affirmative action in admissions to élite universities is so im­por­tant. “The answer is, you get people like me. I assume I’m a beneficiary of affirmative action, and the school made a good bet on me.”

Note the easy, unexamined assumption that, of course, not only the interviewee herself but the country as a whole are better off because of the racial preference she received, that the Asian or white person who would have been admitted but for her preferential treatment could not possibly have equaled her accomplishments, such as they are. I have derided this “C’est Moi!” defense of racial preference many times going back to 2003: here, here, here, here, here, here, here, here, and here.

Do you consider racial preferences to be so wrong that policies that were created to end discrimination against Black people must now be applied to exclude them?

Lemann wasn’t asking me, but yes. Except that the purpose of applying the prohibition against racial preference is not to exclude blacks. It is to prohibit discrimination based on race. And besides: prohibiting racial preference does not “exclude” minorities from anything, although it would no doubt reduce their number in places until they meet the same qualifications as everyone else. Minorities who are “excluded” because they did not meet admission requirements were not “excluded” because of their race. But Asians who exceeded the admission standard applied to all applicants and who would have been admitted in the absence of preferences awarded to blacks and Hispanics were excluded because of their race.

Élite universities routinely tip the scales in favor of athletes, alumni children, and so on. Nobody in the Harvard case is challenging the constitutionality of those practices. Only race would be eliminated as a preferred category.

I’ve argued against this dumb point too many times to cite. “Athletes, alumni children, and so on” do not have any right to not be denied or given preferences, nor should they. The argument against racial preference is not based on a preference for “merit”; it is based on the “without regard” principle of giving no burdens nor benefits based on race.

Finally, speaking of the “without regard” principle, one of the most glaring weaknesses in the Lemann piece is that he didn’t (speak of it). Sure, he quoted from some anti-preference opinions, but in a piece that went hither and yon looking at antecedents of diversity, etc., and included more history than necessary (about the tests, of which he’s written before), he didn’t even discuss, as he should have, the “without regard” principle and its place—now former place—in liberal thought. He roamed freely through the middle of the 20th century but found no time even to notice the importance of Gunnar Myrdal’s An American Dilemma, not to mention the extensive and impressive arguments for that principle made by Marshall and the NAACP on the way to Brown  (see here and here) or the arguments by Hubert Humphrey et al. in the debates over the Civil Rights Act.

Lemann’s recent New Yorker article is far from his first time manning the journalistic barricades in defense of racial preferences. In June 1995, for example, the New York Times Magazine ran a long cover story by him attacking California’s Proposition 209, passed the following year, culminating in a fulsome celebration of Patrick Chavis, who took the spot a UC Davis that otherwise would have gone to Alan Bakke.

As Richard Sander and Stuart Taylor Jr. noted in their magisterial (but long ignored and now virtually canceled in higher education circles) book, Mismatch, Lemann glorified Chavis as a doctor doing noble work carIng for poor minority patients and, thus, as serving the public interest better than Allan Bakke, the white plaintiff who had won his reverse-discrimination lawsuit against UC Davis, earned his degree, and went on to become a Mayo Clinic anesthesiologist. The import of the article was that in prohibiting racial quotas at the medical school, the Supreme Court had undermined the cause of improving access to medical care (represented by Chavis) in favor of letting more middle-class whites become affluent doctors.

One would never know from Lemann’s article — but could easily learn from a Los Angeles Times article two years earlier — about Chavis’s problems with California licensing boards. Three years after Lemann’s article, Chavis’s medical license was suspended for “gross negligence, incompetence and repeated negligent acts” and “inability to perform some of the most basic duties required of a physician.” The immediate reason, Sander and Taylor point out, was that “six patients were injured and one died from botched operations in Chavis’s liposuction business. He had also been sued for malpractice at least twenty-one times. Not only had Lemann and the New York Times overlooked Chavis’s documented problems as of 1995; they did not cover the story of his suspension.”

“So,” Lemann concluded his 1995 article in obsequious admiration, “Patrick Chavis fiercely defends affirmative action and holds himself up as an example of the good that it does.”

Lemann’s dire 1995 predictions of the sky falling if race preferences are prohibited are (or should be) as embarrassing as his celebration of Chavis. Read these two and chuckle:

1. Opponents, Lemann asserted dismissively in 1995, argue “that affirmative action is the opening wedge of a comprehensive ideology that threatens the basic American creed. If multiculturalism is given full sway, according to this argument, we’ll find ourselves living in a society in which all decisions are made on the principle of apportionment to oppressed groups.”

Contra Lemann, the critics of affirmative action were, we now know, absolutely correct. Since he wrote multiculturalism has blossomed, and we now find ourselves facing growing demands for proportional representation.

2. The goal of affirmative action is not to reject the spirit of integration in favor of race-consciousness but to bring blacks into the mainstream of national life. The ironic result of affirmative action being abolished could be an increase, not a decrease, in the kind of black demands for reparations and mandated percentages of the action that whites find so annoying….

On the contrary, despite the flourishing of affirmative action over the past 27 years since Lemann wrote, the call to “bring blacks into the mainstream of American life” is now derided as assimilationist racism, and the demand for reparations and “mandated percentages,” i.e., “equity,” has increased exponentially.

Whatever else he may be, Lemann is no soothsayer.

Lemann’s article is titled “Can Affirmative Action Survive?” He hopes it will but fears it will not. Those of us who continue to believe in what Myrdal and others have called the American creed—that Americans should be treated without regard to race, creed, or color—hope that it will not but fear that it will.

Image: Daniel Schwen, Wikimedia Commons, Creative Commons Attribution-Share Alike 4.0 International license, cropped.