Like most of us, I’ve probably read a hundred blog posts on Affirmative Action in the last couple of weeks. This one, by Jack Balkin (who also has written a terrific post consulting the I Ching for Iraq war advice), is one of my favorites. Here’s a sample:
What about the Civil Rights Act of 1964, then? It’s a terrific question, and it cracks the case for colorblindness wide open, because it brings us to the issue of baselines. John argues that laws like the 1964 Civil Rights Act that guarantee blacks equal opportunity clearly are designed to help them, so doesn’t that make them race conscious? Well, if your baseline is a world in which everyone has the right to refuse service to anyone they don’t like, and the right to hire and fire anyone they don’t like, yes, it does. The law is altering common law rules of contract and property for the explicit purpose of benefitting black people.
Indeed, this *is* the argument (made in 1964) that the Civil Rights Act does not guarantee equal rights but rather creates “special rights” for black people. It is the argument made in 1883 in the Civil Rights Cases that the Civil Rights Act of 1875, which outlawed public accommodation discrimination (an ancestor of Title II of the Civil Rights Act of 1964) was unconstitutional because it made blacks, in Justice Bradley’s words, “the special favorite of the laws.” Today opponents of gay rights laws say they give gays and lesbians “special rights” because these opponents work from a baseline in which its ok to refuse to deal with someone whose sexual practices they find morally offensive.
Another favorite of mine is Sam Heldman’s, which includes this paragraph:.
First, you’ve got to figure out why we admit people to public universities. It’s not as a reward for making good grades in high school. It’s so that we can improve our society — spending public resources to expand the minds of a lucky relatively-few, so that they will go on to do things that will make the world better. Admission is not an entitlement that arises from being smart. It is a matter of being chosen to be the subject of a public investment. Second, we have decided that we ought to invest in just about as many minority kids, proportionately, as white kids. Why? Because it seems pretty obvious to us that this is the way to improve the world — not by reserving this public good mostly for white folks, but by spreading it around. The world will be better more quickly, we think, if there are black lawyers as well as white lawyers, Hispanic engineers as well as Anglo engineers, etc. And it also appears to us that any fairly-designed system of assessing “merit” just would result in approximately proportionate representation among races and ethnicities — that is definitional, we think, as to the words “fairly-designed” and “merit”. Third, if we went solely on SATs, LSATs, and grades, we wouldn’t achieve this goal — so we make adjustments. It’s not a perfect system, but no one has ever yet designed a perfect system for measuring or even defining human merit in any sphere. So get over it.
