Getting honest about affirmative action

BY JONATHAN SKRMETTI

“Bush says Jim Crow/We say hell no!” So chanted a protestor outside Justice Scalia’s recent appearance at the University of Pennsylvania Law School.

No rational person could honestly believe that President Bush wants to reinstitute that disgraceful (Democratic) regime of racial discrimination. To the contrary, the President, in opposing affirmative action, is taking a stand against race-based double standards. The protestor, on the other hand, seeks to retain a system of racially disparate treatment. Nevertheless, the protestor identified the President as a racist of the highest order.

No facts support assertions that the President seeks a return to the grim days of Jim Crow. I’m sure that someone out there is convinced that the government has required all new federal buildings to include twice as many bathrooms and water fountains as necessary so that racial segregation can be easily reimplemented. But there is also someone who wears a tinfoil hat to keep the alien mind-control beams from subverting his will. That the lunatic fringe believes something does not make it true.

There are reasonable, and even powerful, arguments in favor of affirmative action. Polarizing slanders that rhyme are not among them. Diversity, for instance, is an immensely important goal, and affirmative action is one method of reaching that goal.

Reasonable people can disagree about how best to pursue such goals. Whether the goal of diversity is enough to justify violation of the Fourteenth Amendment’s prohibition on race-based classification and to apply a racial double standard is something that well-intentioned and intellectually honest people may debate.

Insinuations that heterodox policy positions are motivated by some sort of broad genocidal or apartheid agenda, on the other hand, obliterate any potential common ground for dialogue and create an unbridgeable chasm between parties. The continuing failure of the more radical affirmative action proponents to recognize the existence of legitimate grounds for disagreement over law and policy means that any potentially constructive national debate over affirmative action has been reduced to name-calling. To ensure equal opportunities for success, America needs a wide-ranging dialogue about potential solutions.

For example, I understand that back around the 1960s, Harvard Law School ran a post-collegiate program for aspiring black lawyers, a sort of prep school to ready them for success in law school. Then as now, many black students had been disserved at a young age by inadequate education and thus spent their entire academic careers trying to catch up. The HLS program gave those students a chance to improve and enter law school on a level playing field.

That program contains the germ of an interesting idea: One can preserve law school diversity without applying a racial double-standard for admission by ensuring that more minority applicants meet the baseline standard. This is the long term goal of all pro-diversity policies; such a program would just add an intermediate step in the short term to ensure the same outcome.

By giving educationally disadvantaged minority students a chance to surmount those disadvantages, this solution has the added advantage of eliminating the disparate performance observed at law schools such as the University of Virginia, George Mason University and William and Mary. All students would start on a level playing field, rather than some students constantly trying to catch up to others who arrive better prepared. Such an approach could preserve diversity in law school classrooms until the fundamental problems of the educational system and other obstacles to minority achievement can be corrected.

Of course that is not to say that without such measures there would be no diversity. But without some sort of special treatment, the number of minority students enrolled at HLS would, at least for the foreseeable future, plummet. Existing American primary and secondary educational institutions have undeniably failed minority and poor students.

Problems linger with such an alternative plan: It still relies on naked racial classification and thus, if undertaken by a state actor, appears to violate the Fourteenth Amendment. But maybe (and God forbid anyone at HLS ever suggest this), private organizations could administer such programs. They are not similarly bound by the Fourteenth Amendment, and Congress could repeal statutes that obstruct such behavior.

I do not jump whole-heartedly behind such programs; there are undoubtedly better solutions out there. I simply want to suggest that affirmative action is not the only way to pursue diversity and that a militant orthodoxy stifles the fresh thinking needed to realize the dream of equal opportunity regardless of race.

The Law School’s ready supply of leftist extremists will probably brand me a Klansman for suggesting alternative methods to ensure diversity at the law school. Racialist fundamentalists view any solution other than lowered entrance standards for minority students as heretical. Such zealots adhere to their doctrine despite the failure of leftist policies to improve the lot of black America over the last three decades.

Healthy democracies thrive on disagreement, and any idea advanced deserves to be thoroughly critiqued in the interest of finding the best solution. But rigid adherence to blind dogma will do nothing but further polarize America and leave a stable and enduring solution out of reach.

The United States, the Law School and its students would be better served by innovative solutions and creative thinking than by vituperative slogans.

Comments