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The author of this post is George Leef.
A prominent law professor pens a book claiming to show that affirmative action must continue.
One of the most famous phrases in American oratory is the Reverend Martin Luther King Jr.'s statement in his March on Washington speech that he looked forward to the day when all people would be judged not on the color of their skin, but on the content of their character.
That idea has rightly become so much a part of American life that it's shocking to encounter people who argue that racial discrimination can be good and should continue indefinitely. Harvard Law professor Randall Kennedy is among them - and with the title of his latest book, he admits that affirmative action is discrimination. He maintains, however, that affirmative action (i.e., racial preferences extended to blacks, Latinos, and a few other minority groups) is a benefit to the nation. Ending it now and treating all students and job applicants as equal individuals without group favoritism would, he claims, be "a calamity."
Kennedy says that he has fairly analyzed the arguments pro and con and concluded that while affirmative action imposes some minor costs, on the whole it is conducive to the public good. It "addresses debilitating social wrongs," helps brings about "rectification" and "racial justice," eliminates "blockages" that anti-discrimination statutes can't dislodge, "legitimates" our educational and government institutions, and creates a "vanguard" of highly-educated, influential minorities that will lift up their groups.
All of that sounds like a stupendous boon for America.
The problem is that Kennedy merely asserts those good results. He makes no effort at demonstrating them so as to convince Americans who are skeptical about affirmative action. Undoubtedly, people who were already in favor of affirmative action - almost all higher education leaders, for example - will nod in agreement and bask in the knowledge that a Harvard Law professor has reassured them that they're right.
If you are looking for objective analysis, however, this book offers very little of it.
I am going to focus on Kennedy's case for affirmative action so far as higher education is concerned.
His main argument is that it is necessary in order to get more blacks and other minorities into elite colleges and universities. Kennedy approvingly quotes Glenn Loury that "elite education is the primary site in American life where access to influence and power is rationed."
Considerable hyperbole there - having gone to one of our elite colleges is neither necessary nor sufficient for "access to power," but the deeper problem is Kennedy's assumption that "power" in the hands of beneficiaries of racial preferences is necessarily a good thing. Is it?
You would expect Kennedy to support his argument by showing how much those people have done to solve the serious problems that beset minority communities. If the affirmative action students who graduate from elite schools are, as he puts it, the "vanguard" that will "advance the fortunes of racial minorities in general," it should be easy to demonstrate that.
No such demonstration is to be found.
America has been committed to affirmative action for nearly 40 years, but there has been little if any progress among the favored minority groups. In fact, the fortunes of those groups have gotten worse.
As Thomas Sowell and other scholars have pointed out, black Americans made remarkable economic progress during the 30s, 40s, 50s, and 60s - before the advent of affirmative action and the plethora of federal programs meant to improve life for them. Since then, however, economic progress has stopped and especially over the last five years, they have seen increasing unemployment and dependence on federal largess.
Affirmative action undoubtedly puts more blacks and other minorities in positions of power, but to what end?
Professor Walter Williams, himself black (and as he has written, glad he "went to school before it became fashionable for white people to like black people") points out that most blacks who benefited from preferences and now hold positions of power have aligned themselves with status quo interest groups that are obstacles to minority advancement. That is most glaringly the case with regard to K-12 education.
, "Black public officials are getting something in return for their support of teachers unions and others who benefit from the educational status quo. The question not addressed is whether what black politicians are getting for their support of a failed educational system is worth the sacrifice of whole generations of black youngsters...."
Very few of the blacks and minorities who have "access to power" use it to battle against a bad public education system. Few battle against special interest laws that keep prices artificially high, or that obstruct small entrepreneurs.
If affirmative action was the only way to bring into existence a cadre of minority lawyers and politicians who work hard to remedy the underlying causes of social and economic decay among the poor, I might applaud it. But that's not the case. I can think of only a very few who fit that description, among them Supreme Court Justice Clarence Thomas, whose opinions have consistently favored educational choice and economic liberty for people who have been deprived of them. Kennedy, however, has nothing but disdainful words for Thomas because he is not an advocate of affirmative action.
To summarize my point, while Kennedy wants us to believe that preferences for a tiny number of minority students to attend elite colleges leads to "uplift" for their racial and ethnic groups, the truth is that the benefits go almost exclusively to those fortunate individuals.
Think of it this way: the black community is no better off because Randall Kennedy teaches at Harvard Law and writes books like For Discrimination than if he taught at a less famous university and merely taught a good course on contracts. What benefits a few members of a group is not the same as a benefit for the group as a whole.
Kennedy also alleges that affirmative action is good because it improves classroom discussion. Ever since the Grutter case, that claim has been part of the defense for using racial preferences and he happily lends his authority to it, writing, "I have seen firsthand the intellectual deprivation suffered by white law students consigned to racially homogeneous classes. In the absence of black and Latino students, discussions regarding large swaths of law were obviously and painfully impoverished."
To readers who have never been to law school, that probably sounds like a serious problem. White law students aren't learning what they need to know because there aren't enough black and Latino students in class to offer insights into what is wrong with the law.
But here's the rub - to the extent that law students need to know why the law may be deficient or harmful (and overwhelmingly, students simply need to know what the law is), there's no need to rely upon minority students to supply that discussion.
For one thing, few students admitted under racial preferences will have any particular familiarity with, e.g., controversial Fourth Amendment search and seizure rulings. Furthermore, the professor can raise any controversial questions himself. There is no need to leave any students "impoverished."
On the negative side of the ledger, Kennedy admits that serious arguments have been made against affirmative action, but declares that they don't come close to tipping the scales against it.
The most important of those is the "mismatch" argument - that students can be damaged by putting them in schools where most of the student body is better prepared for the academic work.
UCLA law professor Richard Sander is the best-known proponent of the mismatch thesis. He contends that minority students admitted to elite law schools are less likely to graduate and pass the bar than if they had attended less prestigious schools. Kennedy admits that Sander might be right, but says that he thinks the trade-off of more minority lawyers with elite credentials versus fewer minority lawyers in total is worth making. Remember, "elite" education means "access to power."
Whether you agree with Sander or Kennedy, on that point, the more serious mismatch problem is at the undergraduate level. Kennedy ignores that.
Affirmative action draws many minority students into educational settings where they are at a large disadvantage compared with most of their classmates. One such student, Kashawn Campbell, was recently the subject of an article in the L.A. Times (link to that article included in my piece on this depressing story). He enrolled at Berkeley, but couldn't even pass his remedial writing class and would have been ineligible to return if it hadn't been for one high grade - in African-American studies.
The problem is that lots of those mismatched students either drop out or slide into one of the soft, undemanding majors. That was the finding of Duke economics professor Peter Arcidiacono, whose paper (with two others) led to a nasty fracas on campus, including an unseemly rebuke from Duke's president. (Heather Mac Donald has written a good piece
explaining the events in detail.)
In my view, the more serious drawback to affirmative action is not that it puts a few minority law students in schools where they have trouble competing, but that it puts many minority undergrads into schools where they'll forsake rigorous majors in favor of easy ones. Kennedy's rosy calculus on the benefits would be hard to maintain if he had not overlooked the effects of undergraduate mismatching.
Finally, Kennedy acknowledges that mixing students of significantly different academic ability leads to problems for professors. "I have taught in classrooms," he writes, "in which there existed a clearly discernible difference between 'regular' students and beneficiaries of excessively strong racial affirmative action. The consequence is ugly." Kennedy doesn't elaborate on that, but this is the problem: When a professor faces that mix, he must decide whether to lower course rigor and expectations so the weaker students can keep up, or to maintain high standards so the best students are fully challenged. Going either way is bad for some students.
Kennedy says that he would avoid that problem by insisting on affirmative action policies that are "sensibly designed." But his ipse dixit won't stop college officials from admitting students who add to "diversity" but who'd be better off enrolling at a school where the standards are lower. After all, the harm doesn't fall on those officials, who are both emotionally and financially invested in seeing affirmative action continue. It falls on the students.
Many "liberal" policies seem appealing if you uncritically accept grandiose claims about the good they do, while minimizing or ignoring the damage they inflict. That's exactly how Kennedy's book treats affirmative action.