This year’s Supreme Court docket could dramatically alter racial policy in America, with cases that could invalidate two key achievements of the civil rights movement: The Voting Rights Act and affirmative action.
Both policies are liberal ideas with some conservative friends – Martin Luther King’s iconic voter protection law was last reauthorized by George W. Bush in 2006, while the affirmative action case has brought out support from Republicans, retired generals and corporate America. Progressives are also standing firm. Fifty years after Selma, voting access remains a core issue for Democrats and their most loyal constituency, African-Americans, while a host of liberal groups, led by President Obama, filed briefs defending affirmative action.
Against that backdrop, this past Sunday’s major New York Times feature, “The Liberals Against Affirmative Action,” is especially strange.
While conceding that “most prominent liberals,” civil rights leaders and the President do actually back affirmative action, the article by the Times’ Washington bureau chief reports that some “left-leaning legal scholars” now “find themselves in the unusual position of seeing upsides in another potential liberal defeat in Chief Justice John G. Roberts Jr.’s court.”
That’s a big claim. The theory here is that (1) a conservative rejection of today’s affirmative action would lead to (2) a policy focusing more on class which (3) some liberals will welcome as an alternative to today’s focus on race. Each of these arguments is flawed in important ways.
Let’s start at the end, with the prediction. If Justice Roberts hands down another “liberal defeat” on civil rights this term, we can all count up how many liberals celebrate. The article only quotes one candidate, Georgetown law professor Sheryll Cashin, who says a negative ruling will be “a crisis” for diversity advocates, but the “good thing about that” is a potential re-evaluation of public policy.
That’s it. There are no other liberal proponents quoted – the article cites the author of a book against affirmative action – and scant evidence for the notion that a ruling invalidating a key liberal idea would be good, either for liberals or equal opportunity policy. That brings us to the next claim – that a liberal defeat in Court would helpfully nudge this policy from race over to class.
Many affirmative action critics argue that nowadays, the income bracket matters more than the color line. The Times article doesn’t say so directly. It proposes, however, that a negative ruling should jumpstart the use of supposedly better criteria, like “income” and poor neighborhoods:
“If colleges gave students credit for coming from a low-income ZIP code, black and Latino students would benefit enormously, as they would from the consideration of wealth and family status. Only 27 percent of white students grow up in a single-parent family, compared with 60 percent of black children.”
This line of thought is revealing. It begins with the goal of prioritizing class over race, but ends with an aggregate rationale for how the approach would, yes, prioritize race.
If a policy’s true goal is racial diversity, why not stick with the approach that pursues it directly? It seems pretty backwards to go through the entire exercise of race-neutral criteria, all in order to land back at racial diversity. The alternative defense for a class-based preferences, often lurking but rarely specified, is that today’s affirmative action has come to benefit the “wrong kind” of minorities.
The image of privileged minorities snapping up coveted seats at Harvard may rankle some critics, but it is certainly not a constitutional flaw – the only question before the Court – nor an automatic failing for the policy’s core goal of diversity.
In fact, the “privileged minorities” complaint misunderstands a vital part of equal opportunity policies. Affirmative action is a tool for advancing racial diversity, which ideally includes diversity within the minority population as well. In other words, not every black person who benefits from affirmative action should automatically be poor, or from a single-family home, or descended from American slaves. That would be a crabbed conception of diversity-as-reparations – a cartoonish image in the mind of the program’s critics, not its saviors. (It’s also a legal necessity, because the Court has already ruled out addressing past discrimination as a rationale for affirmative action, leaving diversity as the only acceptable rationale.)
If these racial categories sound almost crude, consider the same distinction through the prism of gender, which can be a less sensitive template.