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.

In Kemper County, A Picture of America We Don't Want to See

I confess to subconsciously possessing wildly absurd ideas about what Mississippi would be like before I arrived here. Somehow I felt as if I was traveling into an exotic place, the belly of the beast, as it were, when it comes to American racism. It is as if I expected everything to be quaint and different and frozen in time. I don't think I actually expected that, but at some level I harbored those ideas. And perhaps there are places, such as in the Delta, that do feel that way. But mostly I have been treated to landscapes of strip malls and Walmart's and McDonald's, with nary a cotton field or confederate flag to enliven the scene.

Granted, I am in a college town, which surely makes a significant difference. And I suppose if I did pass cotton fields I probably wouldn't know it at this time of year anyway. But one does see the Mississippi state flag flying many places, which prominently features the stars and bars. That is an ongoing scandal.

It is weird, too, to pass through places that are so laden with history and now seem so mundane. I wish I could stay here longer and talk to local people and get a better sense of how people feel about the legacy of the civil rights movement. I would especially like to do that in Stennis's hometown of DeKalb, in Kemper County, but it is an hour and a half south of here and I'm not sure if I'll have the chance to take that trip before I leave.

Stennis worried about places like Kemper becoming "ghost counties." During his lifetime the population of Kemper County fell by more than half, and has since flat-lined for the past 40 years. It is a classic case of a very poor rural county left behind by the modern globalized economy. Like it was throughout Stennis's life, it remains majority-black. The increase in local black political power that Stennis tried so hard to prevent has done little to alleviate the grinding poverty in the area.

One of the most horrendous legacies of the civil rights movement in Kemper County, as in many other areas of the United States, is that the public school district is, essentially, for blacks, while private schools provide education for whites. Though whites constituted almost 40% of the population, as of 2011 only 2.3% of public school students were white while over 97% were black. Before desegregation came to Kemper County in the beginning of 1970, almost all white children attended the public schools.

As in many other districts across the country, this did not change gradually. It happened in an instant, the very semester the court-ordered desegregation plan was implemented. Over 40 years later, segregation is maintained in Kemper County, as it is in many other places, while conservatives pretend that their contempt for public schools has nothing to do with race.

For two decades stretching from the 1950s to the 1970s, various institutions of our government, from the Supreme Court to the U.S. Commission on Civil Rights studied these issues and concluded that segregated schooling, regardless of the origin or method of such segregation, was inherently unequal and harmful to black children. As a government and as a people, we have definitely and unequivocally turned our backs on that idea.

It would almost be comforting if we claimed not to believe those findings anymore, or if the ideas of those years had been thoroughly debunked. Instead, we just pretend that they have no relevance. We hail Brown vs. Board of Education as a landmark, yet we don't even keep up a pretense of implementing it anymore. On this front, the civil rights movement was defeated, and most white Americans appear to be glad that it was.

John Stennis's America

I am in Mississippi this week doing research for my thesis. It is a fascinating experience. A lot of drudgery is involved, but I’ve also happened upon a few goldmines. One of the things that I can say with a great deal of confidence is that John Stennis never substantially changed his views on civil rights policy during his six decades in public life. The archives are pretty clear on this. But that presents a huge problem for American memory of the civil rights movement. Precisely because Stennis was so powerful and widely respected, he has to be either forgotten, remembered selectively, or be granted a story of redemption and change that is not true to the historical record. In the editorials and eulogies that poured out at his death, we see all three approaches.

The reaction to Stennis reveals an America that is extremely uncomfortable with a realistic memory of the civil rights era. Bigoted demagogues are happily recalled, because they fit comfortably in the national narrative of progress. Remembering a man who was powerful and admired—even loved—while remaining a white supremacist confuses this narrative. Thus the dominant reaction to Stennis and what he represents is forgetting, collective amnesia. He is written out of the record. Segregationists were bad, they were vanquished. They can’t have survived.

But when he retired at the end of 1988 and died in 1995, for a brief moment politicians and the press were forced to grapple with his legacy. The way they did so was revealing. Some just completely ignored his civil rights record. Most acknowledged it in a disapproving tone, only to create an arc of redemption by noting his vote in favor of renewing the Voting Rights Act in 1982. But Stennis’s personal papers reveal that vote as a craven political calculation, divorced from his actual views on the subject.

The lesson is that Americans in the mid-1990s, when faced with a respected segregationist whose life did not offer a story of redemption, would create one anyway. It was surely not a conscious decision taken by hundreds of individual editorialists. It was rather a collective expression of America’s unease with its racial progress. Americans wanted to believe that they lived in a country the civil rights movement created—full stop. But they also lived in the America of the countermovement, the America of John Stennis. To admit that fact would imply the need for more to be done to fulfill the promise of equality and justice for all. That was a step a critical mass of white Americans were unwilling to take.

Equality, Rights, Privileges

Ta-Nehisi Coates continues his critique of President Obama's way of speaking to black audiences:

I would argue that the current black predicament did not arise because black people lacked sufficient moral will. I would argue that we recognize this in other communities and their own predicaments. It would not be productive for the president to go before a white working-class Appalachian audience and say, "We know that economic unfairness exists, and has long existed, but government programs won't keep your kids off meth and painkillers." The fact that meth and painkiller addiction is higher in those communities, that one in ten kids born in Appalachia was born addicted to drugs, would not be seen as relevant to, say, a jobs program.

Nor would it be productive or wise for the president to go before a primarily Hispanic audience and say "We know that the DREAM Act is the right thing to do, but what you really need to do is keep your babies from having more babies." The fact that the Hispanic community has the highest teen pregnancy rate in the country would not be seen as relevant to, say, immigration reform.

And it would not be productive or wise for the president to go before an audience of Native Americans and say, "Yes, this country stole your land and prosecuted a ruthless war against you, but what would really help now is if you stopped your kids from drinking so much." The high rate of alcoholism among Native Americans would not be seen as relevant. And as I've said, it would not be wise for the president to go to Newtown and point to the absence of active fatherhood in the life of Adam Lanza.

But for some reason all of these kinds of statements are appropriate in the black community. Not because of higher rates of anything, and it not even because the president is black. They're seen as appropriate because there a deep belief -- even among black people -- that morality lies at the seat of our troubles...

I can (and have) marshaled numerous statistics to show that morality is not the real issue here, but the trouble is that statistics are subject to varying interpretations. Whether you believe the problems of black Americans are rooted primarily within or without, in black culture or in external discrimination, is less a question of evidence than of a priori assumptions.

Part of examining those basic assumptions involves stepping back, as Coates does here, and asking why this discussion so often seems particular to black people. All groups have unique problems, but in the case of African Americans there is a tendency to say that external conditions reveal the essential nature of a supposed black "morality" or "culture."

One of the reasons I'm so skeptical of these moralizing and cultural arguments is that the pattern we see across civilizations and throughout time is of dominant social groups attributing the behavior of disadvantaged groups to their essential nature. Thus Aristotle looked at slaves and instead of concluding that their degradation resulted from being enslaved, he got it backwards and said that some people are natural slaves. Thus the English poor of the 17th century were not desperate landless peasants amid rising demographic pressures and unjust economic systems, they were natural thieves.

The American context ought to make this all the more clear. For most of our history, to put it in blunt and simple terms, the white elite has been carrying on this conversation around the question, "What is wrong with black people?" The basic contours of the answer to that query have remained remarkably stable, because the question mostly answers itself. To ask it is to implicitly absolve the dominant society of any wrongdoing or responsibility.

During the height of slavery, the question was answered with the assumption that blacks were biologically inferior. By the middle of the twentieth century, even among many segregationists this scientific racism shaded into arguments that were more cultural and civilizational. Someone like John Stennis might be agnostic on the question of biological inferiority, while claiming that black culture was degraded.

This is part of the reason why the civil rights laws were so offensive to many whites. Civil rights inscribed equality in law that, in the view of segregationists, had not been earned. Black civilization was not equal, they said, and to treat it as such invited harm to white civilization. By relentlessly focusing on the state of black behavior, whites obscured their complicity in the creation of an oppressed class.

Much of segregationist rhetoric took on an Orwellian double-speak character because it started from these presuppositions of black cultural inferiority. Many whites could say with a straight face that blacks were not being discriminated against when their schools were funded at a fourth of white funding levels, because they were being provided with education adequate to their level of cultural development. Equal treatment is wasted on groups that are not equal. This was the segregationist mind, but it also bleeds into the broader white American mindset both then and now.

By merely asking what is wrong with black people, we play into a narrative that elides what is wrong with America. This is a country in which black people have had to earn what whites possess as a right. And when they do set out to claim those rights, they're seen as seeking after special privileges. As TNC sums it up:

The neighborhoods where black people shoot at each other are the work of racist social engineering. We know this. But we do not say it, because there is almost no political upside. Instead we hand-wave at racism and pretend that individual black morality might overcome many centuries of wrong.

Racism is a Normal Feature of American Life. Right Now. In 2013.

The ACLU came out with a study on Monday showing the huge nationwide racial disparity in marijuana arrests. It was duly reported on in the media yesterday and will quickly be forgotten. I'm not going to rehash the contents of the study, so if you're unfamiliar with these disparities check out the report or Wonkblog's helpful summary. The key point to keep in mind is that there are not significant differences in marijuana use across racial groups.

The depressing predictability and regularity of these studies raise a few larger points.

1) We live in a society that is basically unfair in ways that completely contradict everything we claim to stand for. These are not problems as defined by radical liberals. These are basic moral and constitutional violations that ought to unite people across the political spectrum in outrage. Because black people bear the brunt of it, indifference is the more common reaction.

2) As Michelle Alexander has shown in The New Jim Crow, the Supreme Court has effectively institutionalized racial discrimination in law. Racial profiling is legal, and many police forces are racist in their practices (in the sense that they apply the law and their policing power in disparate ways based on race rather than solely on concrete factors like crime rates).

3) The purveyors of these racist practices are bipartisan, and not necessarily white. From reactionary bigots like Sherriff Joe Arpaio, to big city Democratic mayors like Rahm Emmanuel, racist policing is either actively encouraged, or silently accepted. The prime example is New York mayor Michael Bloomberg, whose paternalistic liberalism finds no fault with invading the privacy of citizens in systematically racist ways.

4) Yet our political culture does not allow these facts to be plainly stated. At the national level, both parties pretend that America is a place where everybody gets a fair shot. On the Republican side, any politician who dares to admit that minorities are discriminated against because of their race immediately dooms their chances for higher office. And really, it's not that much different for Democrats. Barack Obama has spent more time telling black Americans to turn off the TV and pull their pants up than he has acknowledging the systemic discrimination they face. There is grassroots activism in the Democratic Party on the left, but if you want to be a big-time national politician you don't make a big deal out of it. You might vaguely allude to ongoing problems, but you certainly don't call out America's racism or propose any specific means of dealing with it.

5) At the state level, the trend is clearly toward less punitive drug laws. This is positive in that as it reduces the overall severity of punishment those who have been the target will feel some relief. But it doesn't directly address the core problem of racial discrimination. Without proactive action, a less punitive drug war will reduce the absolute number arrests, but will do nothing about the underlying disparity. Unfortunately, there is little evidence the trend toward leniency is driven by an acknowledgment of racism. It rather seems to be fueled by the growing acceptance of marijuana among middle class whites.

6) I'm not sure history will look kindly on Barack Obama's cowardice on racism. I am sure he is aware of the issues involved. But he has done nothing to bring these matters to the nation's attention. I know what the political scientists tell us, that by mentioning the issue he immediately polarizes it. But we're talking about something the right-wing could hardly be more retrograde and polarized on already. What's the harm in mentioning it?