Why Affirmative Action is Morally Right

[While writing this post the Supreme Court released its ruling on the case. It looks as though they did a narrow ruling that dodged most of the issues involved. A much better outcome than what I feared.]

For some background on the Supreme Court's likely ruling on affirmative action this week, I encourage you to read Propublica's insightful reporting. The plaintiff at the center of the case, Abigail Fisher, has alleged that she was denied admission to the University of Texas because she is white:

"There were people in my class with lower grades who weren't in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin," she says. "I was taught from the time I was a little girl that any kind of discrimination was wrong. And for an institution of higher learning to act this way makes no sense to me. What kind of example does it set for others?"
It's a deeply emotional argument delivered by an earnest young woman, one that's been quoted over and over again.
Except there's a problem. The claim that race cost Fisher her spot at the University of Texas isn't really true.
In the hundreds of pages of legal filings, Fisher's lawyers spend almost no time arguing that Fisher would have gotten into the university but for her race.
If you're confused, it is no doubt in part because of how Blum, Fisher and others have shaped the dialogue as the case worked its way to the country's top court.
Journalists and bloggers have written dozens of articles on the case, including profiles of Fisher and Blum. News networks have aired panel after panel about the future of affirmative action. Yet for all the front-page attention, angry debate and exchanges before the justices, some of the more fundamental elements of the case have been little reported.
Race probably had nothing to do with the University of Texas's decision to deny admission to Abigail Fisher. 

But let's go deeper. What if it it had? Would that be a problem? Doesn't the entire premise of affirmative action imply that, even if Abigail Fisher in this specific incident is incorrect in her allegation, there will inevitably be many Abigail Fisher's? Are we okay with that? Many Americans, especially whites, are not. Perhaps you oppose affirmative action too.

I would like to convince you that you're wrong.

Your view of affirmative action is heavily influenced by your understanding of what American society is like. As soon as you acknowledge the exhaustively documented extent of inequality and discrimination that favors whites and disadvantages minorities, affirmative action looks fairly reasonable even if you disagree with it. If you're in denial about the way our society systemically privileges white skins, there's little left to argue about. You need something like a spiritual conversion.

Twenty years ago Cheryl Harris wrote a classic article in the Harvard Law Review called "Whiteness as Property." She argued that whiteness itself has taken on the characteristics of property and many whites and social and governmental systems unconsciously expect privileges to accrue to them because of their whiteness.

In questions of affirmative action, the baseline is thereby distorted beyond any reasonable standard of justice. When considering whether affirmative action cost them a specific job, whites claim to ask, "Would I have got the job if race was not a factor?" In asking this question, they elide the fact that the society of which they are a part is discriminatory and unequal in ways that favor them. Had they been born with a different skin color they would have been statistically less likely to have the opportunity to apply for the job in the first place. Having arrived at the specific circumstance of the job or college application on the strength of an uneven playing field, they now insist that the playing field be equal. In this way they enshrine their white privilege as normative.

It is a bit mind-numbing if you've never thought about it this way before, and probably more so due to the inadequacies of my explanation. But this gets at the deeper changes the lawyers working on Fisher's behalf are trying to bring about:

So while the Fisher case has been billed as a referendum on affirmative action, its backers have significantly grander ambitions: They seek to make the case a referendum on the 14th Amendment itself. At issue is whether the Constitution's equal protection clause, drafted by Congress during Reconstruction to ensure the rights of black Americans, also prohibits the use of race to help them overcome the nation's legacy of racism.

The Supreme Court has never ruled that the Constitution bars any and all laws and government programs that consider race. But Blum and his supporters, seeing an opening with the current Court, seek to overturn more than a century of precedent.

The true crux of the suit is not Fisher's failed application, but that government officials violate the constitutional rights of white Americans when they consider race in a way that might help African-Americans and Latinos.

"An argument can be made that it is simply impossible to tease out down to the last student who would have been admitted, and who would have not been admitted, had they been a different skin color," Blum said. "What we know is skin color is weighed and ethnicity is weighed by the University of Texas in their admissions process, and that alone is enough to strike down the plan."

Blum and his supporters say the reasoning is simple. The Constitution is colorblind and the equal protection clause of the 14th Amendment prohibits the government from treating people differently because of race. 

It is difficult to immerse myself in the strategies and rhetoric of segregationists defending Jim Crow, and then when I come up for a breather I find their spiritual descendants are respectable figures arguing cases before the Supreme Court. I have a rather unlimited degree of contempt for Mr. Blum and his ilk. They're using the same old playbook. As soon as the Supreme Court essentially told whites they weren't allowed to officially write white supremacy in law, whites turned around and said, "oh okay, well you know, the constitution is colorblind. We can't acknowledge race in government policy." The motivation is clear. In a society that is systemically discriminatory against blacks, a strictly neutral government validates such racial inequality as a baseline status quo. The culture acts affirmatively against blacks, while conservatives seek to prevent the government and other socially responsible institutions from stepping in to act affirmatively in blacks' favor.

Take a step back and realize that there are respectable people in the United States today who are fighting for the rights and privileges of white people, as such, even if they do not admit it in precisely those words. As a Christian who believes in the words of Jesus and the reality of a final judgment, that is a truly scary place for a person to be in. At the end of our lives when we tell Jesus what we were all about, I don't think fighting on behalf of the most privileged group in our society will have done us any favors.