Thursday, February 23, 2012

The Fisher Case and the Quality of Debate

Affirmative action is an emotional issue, and I should probably not be surprised that some on all sides of the issue take leave of reasoned argument when they turn to this topic. Still, I was taken aback by some of the rhetoric in today's debate among putative experts in The New York Times. The worst of these is unquestionably the piece by Columbia Law Professor Patricia J. Williams. Essentially, Professor Williams argues that we have not moved beyond race in American society. But rather than constructing a logical argument based on this premise, she lectures that "we need to acknowledge the race-conscious biases and anxieties lying in plain sight" and she excoriates a "counterproductive backlash that echoes the plaints of 'reverse racism.'" She concludes, "To argue that race doesn’t matter or shouldn’t be considered at all in admissions processes that are taking place in an echo-chambered world blaring with explicitly racialized competition is not merely hypocritical but foolish." I wonder if it has ever crossed Professor Williams' mind that it is possible for someone to think differently than she does without being a fool and a hypocrite.

Ian Haney-Lopez, also arguing for affirmative action, doesn't call his opponents names. He adopts another rhetorical strategy: accuse them of bad intentions. He believes the Court will likely declare affirmative action unconstitutional, and describes this as the end result of a long political war against "racial justice" by conservative politicians and judges. Well, at least the conspirators against justice aren't hypocrites.

After these poisonous diatribes, I could almost have been won over by George Washington University Law Professor Jeffrey Rosen, also arguing in favor of affirmative action, who observes that "reasonable people can disagree about the civic effects of affirmative action."  Rosen maintains that unless the Constitution clearly forbids a policy, courts should defer to the people's representatives, and that the 14th Amendment doesn't forbid race-conscious policies in some situations. Now, I am not an attorney or a Constitutional law scholar, but I would think that the equal protection clause of the 14th Amendment does require that all individuals receive the same treatment under the law. It does not require that the law counteract social and historical disadvantages by conferring legal advantages on members of underrepresented categories. Moreover, if it were left up to the people's representatives, as Rosen suggests, then probably affirmative action would be abolished in most places. So, I don't entirely buy the argument, but I appreciate the fact that he at least made one.

On the negative side, Peter H. Schuck, a law Professor at Yale University, engages in less demonizing than Professors Williams and Haney-Lopez, but he still inserts a dig at the "political pressure from minority activists [that] will never cease." Professor Schuck does, I think, make the very good point that the goals of affirmative action keep moving further away, observing that the University of Texas, not satisfied with achieving racial balances at the campus level, has been justifying its race-conscious admissions by seeking these balances even at the classroom level.  Unfortunately, at the end of his comments he also indulges in rhetorical excess, concluding that  "For the court to uphold the Texas system would compound the felony [of race-based preferences]." He doesn't accuse his opponents of being felons, I think, but I don't think the strong language helps his case.

Vikram Amar, Associate Dean and professor of law at U.C.,Davis takes a diplomatic approach. Well, he is a dean, so maybe he's acquired the habit of diplomacy on the job. He acknowledges that using race to remedy past discrimination or to create diversity may be inconsistent with the basic value of individual equality, but suggests that sometimes you just have to use race to get beyond racism, in a paradoxical formulation he borrows from Justice Harry Blackmun. Again, I am not a Constitutional scholar, but if I recall the Bakke and Grutter decisions correctly, the Court decided that remedying past discrimination is not a legitimate basis for race-conscious admissions policies, leaving only the diversity rationale. But Amar says "it is tough to know when affirmative action has outlived its usefulness." He suggests, in what I take is a line of argument similar to that of Professor Rosen that, "As wise as the court is, sometimes it should let the political processes decide when contested policies should sunset." It is nice of Dean Amar to praise the wisdom of the judges and not accuse them of being parties to a conspiracy against racial justice. But, again, I think that if affirmative action really were left up to political processes, it would have been gone long before now.

Stephen Hsu of the University of Oregon, a theoretical physicist and not a lawyer,  presents what I saw as the most reasoned argument. He is also the only one to introduce evidence. He argues that SAT results are reasonably good predictors of academic success and there are differences among the racial categories in average SAT results. Therefore, race-based preferences are counter to meritocratic ideals and bring in students whose abilities vary by race.  I happen to agree with this argument, but if I were looking for a way to challenge it, I would probably focus on just how well SAT tests actually do predict success. I might also argue that as long as we rely on current ability distributions, we can never hope to re-distribute abilities across categories in the future. Of course, such a response would raise the problem of using law and public policy as an instrument for re-designing a society. Ultimately, though, Hsu impressed me as not only having a logical, fact-based argument, but as making his case solely on the basis of that argument, rather than on accusations of foolishness, hypocrisy, insidious motivations, and criminal actions.

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