Senator Jim Webb’s Negative on Affirmative Action

The Sherrod Affair, which has consumed most of the oxygen in the media and blogosphere, was not in fact about race. It was about the use and abuse of race as a political weapon. It is a bit refreshing to turn to a story that is about race.

Jim Webb, Senator from Virginia, has a piece at the Wall Street Journal that is about race. More specifically, it is a call for the end to affirmative action. Or at least I think that is what he is calling for.

Forty years ago, as the United States experienced the civil rights movement, the supposed monolith of White Anglo-Saxon Protestant dominance served as the whipping post for almost every debate about power and status in America. After a full generation of such debate, WASP elites have fallen by the wayside and a plethora of government-enforced diversity policies have marginalized many white workers. The time has come to cease the false arguments and allow every American the benefit of a fair chance at the future.

That last bit is rather dramatic, and one might wish that Senator Webb had presented more evidence. Perhaps his conclusion is clear by logic. Affirmative action must be understood in contrast to what one might call negative action. The latter was the great work of the Civil Rights Era: removing legal and quazi-legal barriers to racial integration.

Unfortunately, abolishing segregation in education, government hiring and contracts, and elsewhere, did not automatically raise the fortunes of African Americans. Affirmative action was intended to expedite progress by discrimination in favor of African Americans. Given two applicants for a job or a spot in law school, one of whom belonged to the previously disfavored group and the other of whom did not, preference would be given to the former. That's discrimination even if, as Webb acknowledges, it was discrimination for a very laudable purpose. It remains the fact that discrimination in favor of someone means discrimination against someone else.

The original argument for affirmative action turned on compensatory justice. This group has been discriminated against in the past, so it is fair to discriminate in their favor now, at least for a while. However, when the Supreme Court examined such policies in light of the 14^th Amendment Equal Protection Clause, they did so on the basis of a second argument: the virtue of diversity. State Universities, for example, have a compelling interest in creating a diverse student body. For that reason, they are allowed to discriminate between student and faculty applicants on the basis of such criteria as race, ethnic background, and gender.

The diversity argument opened up affirmative action benefits to many groups that had not been subject to the same kind of discrimination as African Americans whose family history traces back through segregation and slavery. Hispanics, Eskimos, Pacific Islander, and others have benefited from affirmative action policies. To be sure one could make a compensatory justice argument in favor of all such groups.

It is not so easy, however, to target the groups you have in mind with nice legal categories. A study published in the American Journal of Education in 2007 found something rather interesting. From Inside Higher Education:

The study -- by sociologists at Princeton University and the University of Pennsylvania -- used the National Longitudinal Survey of Freshmen to look at the black students enrolled at 28 selective colleges and universities. Of all black people aged 18 or 19 in the United States, about 13 percent are first- or second-generation immigrants, but they made up 27 percent of black students at the selective colleges studied. The proportions of immigrants were higher at the private colleges in the survey than at publics, and were highest among the most competitive colleges in the group, hitting 41 percent of the black students in the Ivy League.

More than a quarter of Black students at the most competitive colleges were recent immigrants, but presumably enjoy affirmative action benefits. Harvard Professor Lani Guinier had this to say:

If you look around Harvard College today, how many young people will you find who grew up in urban environments and went to public high schools and public junior high schools?" she said. "I don't think, in the name of affirmative action, we should be admitting people because they look like us, but then they don't identify with us.

That's the targeting problem on the beneficiary side. Do East Indian Black immigrants deserve compensatory preference? I don't know, but Professor Guinier thinks she does.

Senator Webb is worried about the targeting problem as it affects those who are penalized by affirmative action policies. Does a White woman fresh out of the trailer park with two kids in tow really deserve to be discriminated against because she is the wrong color? I would add: what about an Irish American whose great grandfather was told that no Irish need apply?

Senator Webb doesn't mention, but I will, the plight of Asian Americans. A young woman of Chinese or Japanese descent must score better than White Americans to gain get a place in a competitive university. That's because such groups are "over-represented" in these institutions. That is what diversity means.

I think that Senator Webb is right. No one should be discriminated against because he or she is the wrong color or comes from the wrong place. Maybe, if we care about equal protection, the time has come to actually practice equal protection.

Comments

[Jennifer Lawn]

Can i write an article for your blog? You can write one for mine and include a link to your site.

[BillW]

48% of the US population is male. A third of them are under 15 or over 64. 37% of them are non-white, and 10% of them are handicapped in some way. That leaves roughly 18% of the American population that is NOT a protected minority in some manner.

If 8 out of the next 10 people you meet are members of a protected minority then, yes, we seem to have gone a tad overboard on our concern with minority rights. Either that or we are a nation abysmally poor at arithmetic.

[KB]

BillW: by your arithmetic, the portion of the population that is unprotected is somewhat larger than the portion that is African American. I gather from our recent history that being a small minority doesn't make discrimination okay.

The question is not whether we have gone overboard on minority rights. This isn't a matter of degree but a matter of basic justice. Is it wrong to discriminate against someone because he or she is the wrong color? If you believe in affirmative action, you have to that it all depends on the relative colors. As I point out, even if that's right it might be hopelessly complicated.

[BillW]

KB - My point is that the 18% of Americans who are able-bodied, white males between the ages of 16 and 64 are the only people who do not fall under the protection of some anti-discrimination regulation or another, and whose rights are not being looked out for by some agency or another. We have gone discrimination crazy with over 80% of us falling into the category of victims or potential victims.

Discrimination of any kind is not OK, but we seem to have stretched the notion of discrimination when we have over 4 potential minority 'victims' for every one potential discriminator.

As far as I am concerned, we should move discrimination out of the civil arena and into the criminal courts - disband the EEOC and the rest and if we find that the manager of Denny's has refused to seat or serve someone because of their skin color, or a Walmart manager paid someone less because she is female, the ignorant s.o.b. should spend a couple of years in the state pen rethinking his attitude, rather than fining the company and sending everyone on the Denny's or Walmart management team into mandatory multi-cultural sensitivity training. That will (1) raise the bar for proving discrimination to the criminal standard of beyond reasonable doubt instead of a rather arbitrary preponderance of evidence; and (2) make the consequences more severe for those who meet that more rigorous test. The benefit to all of us will be disbanding all of these government agencies whose charter is to ferret out discrimination and let the police and prosecutors handle it like any other crime.

[KB]

BillW: I misread your previous post. My apologies. You might be right that insisting on dealing with discrimination as a criminal matter rather than as a matter of progressive legislation would help. That would depend on the legal culture. We might see people hauled off to the slammer for not hiring enough left handed Lithuanian Lutherans.