This lecture was held at The Heritage foundation on April 21, 1998.
"Affirmative action" has long had many meanings. The Civil Rights Act of 1964 authorized courts to take "affirmative action" to uproot racially discriminatory practices. That objective was, and remains, morally right. But that same statute forbade race preference; it is morally wrong. Affirmative action and race preference are thus plainly distinguishable; the former (in its original sense) is right and lawful, the latter is neither.
Preference and affirmative action are widely confounded in the public mind because race preferences were introduced (beginning about 1970) in the honorable name of affirmative action. What was to have been eliminated was given the name of what had been designed to eliminate it. Most folks today, with unintended irony, mean by "affirmative action" that very preference by skin color that affirmative action was devised to eradicate.
The result is doubly unfortunate: Wrongful practices fly the flag of justice, and morally right policies are smeared by association with what everyone sees intuitively to be unfair. Remedy for identifiable injuries inflicted by a given institution is a demand of justice; but that is redress for damage from that institution, not preference by color. Henceforth, let us be clear: It is not affirmative action but generalized race preference that is at issue. That our universities do give systematic preference by skin color--often blatantly--is indisputable. I will present overwhelming evidence of this later; but we all know that it is so.
Here is the fundamental principle: Giving preference by race, by skin color, is wrong, unjust; when done by an agency of the state it is unlawful, a violation of federal statutes and of our Constitution. The motives are often good; we understand that. But the conduct is wrong and not tolerable in a good society.
I begin with this historical note: In his Brief in the case of Brown v. Board of Education, Thurgood Marshall, then executive director of the Legal Defense Fund of the National Association for the Advancement of Colored People, wrote in 1954:
Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws must not invoke them in any public sphere.1
I cheered when I read that then, as I cheer today when I re-read it. The truth of this principle does not change with the times. Let us seek to respond justly to injury, giving appropriate remedy where remedy is due, and credit where credit is due, without regard to race. But if ever we are to heal our racial wounds it will be through a national determination, morally resolute and backed by law where that is appropriate, never again to give preference by race or color or sex. The long-term success of a democratic polity requires a deep and widespread commitment to the principle that the laws protect all equally.
Racial discrimination is wrong, no matter the color preferred. We begin to transcend racism when we stop the practice of every form of it, by every public body, now. To give favor to males or to females, or to whites or to blacks or to persons of any color, is morally wrong because doing so is intrinsically unfair. Color, nationality, and sex are not attributes that entitle anyone to more (or less) of the good things in life, or to any special favor (or disfavor). When, in the past, whites or males did receive such preference that was deeply wrong; it is no less wrong now when the colors or sexes are reversed. Justice Marshall long ago made it clear that the plain words of federal law
proscribe racial discrimination...against whites on the same terms as racial discrimination against non-whites.2
But what of those who have been badly hurt by earlier racial discrimination? Do they not deserve to be compensated? Yes, of course; persons may indeed be entitled to remedy for unlawful injury done to them because they were black or brown or female. We give such remedy, rightly--but it is the injury for which remedy is given, not the skin color or sex. There is all the difference in the world between compensation for injury and preference by race.
When preference is given flatly by skin color or by national origin, the inevitable result is the award of advantages to some who deserve no advantage, and the imposition of burdens upon some who deserve no burden. Most often, those who benefit did not suffer the wrong for which compensation is supposedly being given; those who are disadvantaged by the preference most often did not do any wrong whatsoever, and certainly not that earlier wrong to a minority group for which the preference is alleged redress.
The oppression of blacks and some other minorities in our country has been grievous, a stain on our history; no honest person will deny that. But the notion that that we can redress that historical grievance by giving preference now to persons in the same racial or sexual group as those earlier wronged is a mistake, a blunder. It supposes that rights are possessed by groups, and that therefore advantages given to some minority group now can be payment for earlier injuries to other members of that minority. But moral entitlements are not held by groups. Whites as a group do not have rights, and blacks as a group do not have rights; rights are possessed by persons, individual human persons. And when persons are entitled to be made whole for some injury earlier done to them, the duty owed is not to members of their race or sex or nationality, not to their group, but to them as individuals. The effort to defend preference as group compensation fails because it fundamentally misconceives the relation between wrongs and remedies.
This does not mean that affirmative action must be abandoned. In its original sense, affirmative action was intended to insure the elimination of racially discriminatory practices, and no reasonable person would want to oppose that. But if by affirmative action one means (as many Americans now do mean) preferential devices designed to bring about redistribution of the good things in life to match ethnic proportions in the population, affirmative action in that sense must be rejected because the preferences it employs are inconsistent with the equal treatment of all persons.
The argument applies to our public universities with special force, because here the habits of democracy are molded. But many universities now give very marked preference by race and seek to justify what they do by the quest for diversity. A diverse student body is an appropriate goal for a university--but that goal, as Justice Lewis F. Powell said explicitly in his opinion in University of California v. Bakke, is intellectual diversity, diversity of judgment and viewpoint. When our universities announce that they are striving for diversity, we know that what they are really seeking to achieve is racial proportionality; they profess an intellectual objective, but their real goal is racial balance. This passion for racial balance "misconceives"--that is Justice Powell's word--the diversity that might serve educative ends. And however meritorious those educative ends, it is worth noting that they cannot possibly serve as the "compelling" objective that is required for the constitutional use of racial classifications by the state.
Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.3
This principle of equal treatment is the moral foundation upon which the Equal Protection Clause of the 14th Amendment ultimately rests; our Supreme Court has repeatedly emphasized that the rights guaranteed by that clause are individual rights, the rights of persons ["No state shall...deny to any person the equal protection of the laws"] and not the rights of groups. Race preferences in admission fly in the face of the Civil Rights Act of 1964, whose Section 603 reads, in full:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.4
The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.5
That is why every program relying upon naked preference by race or sex, whether in the form of set-asides in the award of contracts or bonuses for hiring persons of certain colors, or additional consideration in competitive employment, or college admissions--all such preferences, whether defended as compensatory or as redistributive, or for the sake of racial diversity--must be unjust.
beneficiaries of race preference are a few members of the preferred
group (if, in fact, they succeed in graduating from the college to
which they have been preferentially admitted), and the newly
emerged corps of administrators whose
livelihood is derived from the oversight and enforcement of preferences. The vast majority of the members of the minority groups in question--in whose interests preferences had purportedly been designed--receive no benefits whatever.
- The cruelest burdens, the most damaging and the longest-lasting, are those borne by the members of the preferred minority group as a whole, who are inescapably undermined by racial preferences. When persons are appointed, admitted, or promoted because of their racial group, it is inevitable that the members of that group will, in the institution giving such preference, perform less well on average. Membership in the minority group most certainly does not imply inferiority; that is a canard--but that stereotype is reinforced by the preferences given.
Since the standards for the selection of minorities are, by hypothesis, lower, because they were diluted by considerations of color, sex, or nationality, it is a certainty that, overall, the average performance of those in that group will be weaker--not because of their ethnicity, of course, but because many among them were selected on grounds having no bearing on the work or study to be pursued. Preference thus creates a link between the minority preferred and inferior performance.
This burden is borne not only by those individuals preferred, but by every member of the minority group, including all those who genuinely excel. The general knowledge that persons with black or brown skins are given preference insures lower expectations from all whose skins are like that. Every minority member is painted with the same brush. No one--not even the minorities themselves--can know for sure that any member of a preferred group has not been given special favor; skin color, the mostprominent of personal characteristics, thus becomes an inescapable onus. If some demon had sought to concoct a scheme aimed at undermining the credentials of minority businessmen, professionals, and students, to stigmatize them permanently and to humiliate them publicly, there could have been no more ingenious plan devised than the preferences now so widely given in the name of affirmative action.
Unfair burdens are imposed upon individuals--deserving applicants and employees--who do not win the places they would otherwise have won because of their pale skin. One often hears the claim that the burdens of preference can be readily borne because they are so widely shared by very many among the great white majority. That is false. Most among the white majority suffer no direct loss. Those who do suffer directly are a small subset, but a subset whose members are rarely identifiable by name. If a university gives admission preference to blacks, some whites who would have been admitted but for that racial favoritism will not be admitted. We cannot learn who those persons are, but the unfairness to unidentifiable individuals who lose because of their race is nevertheless very great. Moreover, every applicant with a pale skin not admitted or appointed may rightly wonder whether it were he from whom the penalty had been exacted.
Institutions that give preference pay a heavy price. Inferior performance (a consequence not of skin color but of stupid selection criteria) results in the many inefficiencies and the many hidden costs. In academic institutions, intellectual standards are lowered, explicitly or in secret; student performance is unavoidably lower, on average, than it would have been without the preferences, as is faculty productivity and satisfaction. The political need to profess equal treatment for all, while knowingly treating applicants and faculty members unequally because of their race, produces pervasive hypocrisy. Even great public institutions hide their policies, describe them deceptively, and sometimes even lie about them. This loss of integrity and public respect has been a fearful cost of race preference, from which recovery will require a generation.
Society at large suffers grievously from the distrust and hostility that race preference engenders. Members of ethnic groups tussling for a larger slice of the preferential pie come to distrust and despise their opposite numbers in competing minorities who (as will always appear to be the case) seem to get more than their "share" of the spoils. And fights develop over who is a member of what group, and who is entitled to its benefits. Indian tribes coming into great petroleum wealth have to develop rules for deciding what makes one a member of the tribe; is it one drop of blood? In the end we will need new Nuremberg laws and official boards to apply the rules of race membership. Ugly business.
In schools, playgrounds, and parks, in commerce and sports, in industrial employment, even in legislatures and courts, the outcome of preference is increasing racial tension and increasing self-segregation. More and more we come even to abandon the ideal of an America in which persons and not groups are the focus of praise and blame, of penalty and reward. I have been teaching at the University of Michigan since 1955; I report to you what all the talk about diversity and multiculturalism cannot hide: Preferential affirmative action on our campus (as on many campuses around the nation) has driven race relations among us to a point lower than it has ever been. The story is long and complicated and has many variants, but the short of it is this: Give preference by race and you create hostility by race. And for that we Americans are paying, and we will pay, a dreadful price.
Preference ostensibly given to overcome the legacy of racism takes the form of racism, engenders racism, nurtures racism, embitters the national community, and infects every facet of public life with racial criteria whose counterproductivity is matched only by their immorality.
I turn, finally, to the litigation now in progress at the University of Michigan. We discriminate by race at the University of Michigan. Some materials (obtained under the Michigan Freedom of Information Act) proving this beyond dispute were distributed earlier. Unable to deny the facts of preference revealed, universities now take the tack that, even though they do discriminate, they do so in ways that are justifiable. On what grounds?
The racial balance argument has been rejected by the Supreme Court, that we know. When the University of California argued that its preferences were justified by the need to "reduc[e] the historic deficit of traditionally disfavored minorities" in the academic world--to promote racial balance--Justice Powell dispatched that argument in one crisp paragraph:
If petitioner's [the University of California's] purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.6
The second argument commonly heard is some variety of the argument for compensation: "Let's level the playing field," or "Are we not obliged to compensate for earlier shackles on the racers' ankles?" and so on. I have explained why this does not justify preference by skin color. But even beyond this, the Supreme Court has rejected compensation as a justification of the university because giving racial remedies is not within the competence of universities: Preference may never be given, Justice Powell points out,7
in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations8 .... Without such findings...the government has no greater interest in helping one individual than in refraining from harming another,9
does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality.10 Hence, the purpose of helping certain groups whom the faculty...perceive[s] as victims of "societal discrimination" does not justify a classification that imposes disadvantages upon persons like respondent [Allan Bakke] who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination. This is a step we have never approved.11
Generalized admission preferences by race are, in sum, not justifiable. Compensation to individuals who have been damaged is sometimes a demand of justice, but that is redress for injury, not entitlement by color. Skin-color groups have no right to redress because groups do not possess rights.
What possible defense remains? Only the alleged value of intellectual diversity in education. California's Supreme Court, in Bakke, had barred all uses of race in admissions. Justice Powell found that too preclusive; his was a thoughtful, nuanced response. In some cases, race may be taken into account. Justice Powell wrote,
The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive.12
In weighing the "qualifications of each applicant," "treated as an individual in the admissions process," ethnic background may serve as a "plus."13 But note well: Only in dealing with particular individuals, as individuals, is such consideration condoned. Race may be taken into account in some ways in some cases--but there are many ways in which, as Justice Powell makes exceedingly clear in this same judgment, race may not be taken into account.
University spokespersons often argue that since the courts permit race to be used as one factor among many, and since they do (of course) consider race as one factor among many, they are doing no more than what the law permits. This argument is embarrassing, an egregious example of the fallacy of affirming the consequent: P implies Q; Q is true; therefore, P is true.
We could argue as well that good health requires a balanced diet, and that since I do eat a balanced diet I must be healthy. Considering race as but one factor among many is a necessary use, but it is certainly not a sufficient condition of its legitimate use. There are many ways, explicitly noted in Bakke, in which race may not be used:
Item: An admissions system is unconstitutional if it employs any means, overt or covert, "of according racial preference."14
Item: A special admissions program is to be condemned not only when places are saved for minorities, but when the system is (as that at the University of California was) "undeniably a classification based on race and ethnic background."15
Item: "The fatal flaw in petitioner's [the University of California's] preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment."16 And how does the Equal Protection Clause of that amendment bear on university admissions? Recall Justice Powell's explicit invocation of that clause: "The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal."17
All these forbidden practices using race are precisely the practices of our universities today. Without a doubt we do "accord racial preference." Without a doubt our admissions system is a "classification based on race and ethnic background." Even the president of the University of Michigan has publicly admitted that we do discriminate systematically on the basis of race and ethnic background. To applicants with credentials identical in every significant way we give sharply different responses--rejecting some while admitting others--with those different responses based only upon race! Is that, or is that not, treating one person one way and another in a different way because of color? Is that, or is that not, the manifest denial of the equal protection of the laws?
- Item: However you describe an admission system, whether as a quota or as a goal, it is incontrovertibly an unconstitutional system, said Justice Powell, if it employs a "line drawn on the basis of race and ethnic status."18
Lines drawn on the basis of race and ethnic status pervade our admissions systems today, and do so explicitly. No reasonable person can doubt, after examining our actual practices honestly, that what we do is in plain and certain violation of the principles of Bakke.
The decision in Hopwood v. Texas of 1996, in the Fifth Federal Circuit, has cast some doubt upon the uses of diversity in any way whatsoever to justify university consideration of race in admissions. Hopwood does not govern most of us, of course. But no appeal to the diversity argument, as expressed in Bakke, can possibly rescue admissions systems that are hopelessly saturated with systematic racial discrimination. Such systems are very likely to be quashed soon by our courts. The University of Michigan, my university, is likely soon to get another stern lecture from the federal courts.
A final thought: Citizens of the United States, black and white, in preponderant majority support affirmative action but find skin-color preference morally objectionable. Ours is a reasonably healthy democracy; I conclude that our bodies politic will tolerate public discrimination not much longer. Race preference will go--and the Riggs Amendment is one clean step toward that objective. We are well-advised to begin to think hard, now, about the ways we can heal our social wounds without resorting to preference by race.
--Carl Cohen, Ph.D., has been a member of the University of Michigan's philosophy faculty for 43 years, and has served on its admissions committees--in the college of Literature, Science and the Arts, and in the Medical School--and as a member of the Executive Committee of the Literary College, and as chairman of the Academic Senate. He has also served as chair of the Michigan affiliate of the American Civil Liberties Union (ACLU) and as a member of the ACLU National Board of Directors. He has long been a contributor to the Legal Defense Fund of the National Association for the Advancement of Colored People.