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Tuesday, April 22, 2003

IS AFFIRMATIVE ACTION UN-AMERICAN? Andrew Hamilton, another 1L here at Minnesota, says it's not today in the Minnesota Daily. Unfortunately, there's not much here that deals with the critical question being addressed in the Michigan affirmative action cases: whether it is permissible for the government to discriminate on the basis of race.

Hamilton makes a few major claims. First, he argues that race still matters.
While we all would prefer to live in a world in which racial distinctions are irrelevant, that is not how things are. According to data compiled by William Kidder, in the mid- 1990s, white law-school applicants at every grade-point-average level were (on average, across all law schools) more likely to be admitted than black applicants at those same GPA levels. If racial distinctions really were irrelevant in our culture, that gap would be nonexistent. We do ourselves and our nation no favors if we ignore such facts merely because they make us uncomfortable.

I'm not sure what this proves. If it proves that there is racial discrimination in law school admissions then I hardly see why more racial discrimination is the solution. If it proves that black applicants with equivalent GPAs tend to have lower LSAT scores, or for some other reason do not have the needed credentials to compete in admissions, discrimination at the law school stage seems like exactly the type of cosmetic solution that we can count on to fail. Additionally, as a constitutional equal protection matter, the argument about remedying societal discrimination has never been successful in the Supreme Court as a basis for remedial discrimination.

Second, Hamilton argues that nobody is really harmed by affirmative action.
But what about the people like me — white applicants whose odds of admission are affected by affirmative action? (Full disclosure: when I applied last year to law schools, I was rejected by several schools that use affirmative action in their admissions procedures.) Are we treated unfairly? I don’t think so, for at least two reasons. First, there are so many white applicants to elite schools that the odds of the average white applicant getting in are quite low anyway; when an admissions committee gives some preference to the few minority applicants, the average white applicant still has just about the same odds. In other words, white applicants who don’t get in are almost uniformly losing out to other white applicants, not to minority applicants. How could I reasonably blame the small number of minority applicants for the fact that many law schools I applied to had hundreds of white applicants with credentials that were comparable to mine? Doing so would be morally indefensible.

Well, in the spirit of full disclosure, I was not rejected by any school that uses affirmative action in their admissions process. However, I am willing to defend Mr. Hamilton's rights even if he isn't. Even if he doesn't know for sure whether he was harmed, the possibility still exists and it seems like he is at least intellectually honest enough about this to admit that. However, the problem with his argument here is that he assumes that it is some significance that lots of other white applicants were also discriminated against. From every racially discriminatory scheme, you can look at the numbers and determine a precise number of people who have been discriminated against. Just because each individual person who is denied admission is not told whether they would have been admitted under a race-neutral system doesn't mean that the discrimination didn't occur. If the system worked the other way, adding points to white applicants or to Asian applicants, I don't think Mr. Hamilton would argue that each individual black student was really harmed because they probably lost their spot to another black student.

Finally, Mr. Hamilton argues that we want to have diverse experiences in law school.
[P]eople rarely complain when a university announces that it wants to have people with diverse interests and talents in its classes. We all agree that classes at elite universities should have athletes and artists, New Englanders and small-town Midwesterners. I surely benefit from examining ideas with athletes and artists. As someone who grew up almost exclusively around other white people, I benefit just as surely from examining those same ideas with members of racial minorities, whose perceptions of politics and (especially) experiences with law enforcement are likely to be much different from mine.

This is pretty much right, but not as an argument in favor of state racial discrimination. To reach the conclusion Mr. Hamilton wants, we need to assume that race should be used as a proxy for ideology or experience, which is exactly the type of racial determinism that I think civil rights activists should be critical of. It is perfectly permissible for a state institution to take into consideration political views and even experiences with the legal system if they really want a diverse student body. I'm not sure most law schools are really interested in an intellectually diverse student body, but that's a whole different kettle of fish. Ultimately, however, the assumption that someone's skin color alone (or more accurately, the box they check on their application) reveals something important about them is difficult to justify as a general matter, and certainly something that I think is prohibited by the Equal Protection Clause.

Hamilton concludes with the familiar sleight-of-hand that we often see from affirmative-action proponents, (not-so) subtly suggesting that those who disagree with him wear long white masks at night and ride around looking for recently-freed slaves to lynch.
Why, then, do so many white people get nervous and defensive when a university or a law school ensures that its classes will have both white students and minority students? There is one explanation, of course: Many white people believe their skin color alone entitles them to elite status. That is, I hope, un-American.

He is, of course, correct that the belief that the belief that white skin entitles one to elite status is un-American (if by un-American he means unconstitutional). However, the same part of the Constitution that he is presumably referring to is about equal protection, and it doesn't make anyone more equal than anyone else.


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