OP-EDS

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July 11, 2003

Race blind criticism

Ah, the affirmative action debate. Those optimists expecting a sweeping rule from the Court have been disappointed. Twenty-five years after Bakke, Justice O'Connor has clarified a few lines and submitted the whole thing for another 25 years of revision, like those maddeningly unhelpful professors who make one or two cryptic marks, and write "Pretty good - B+."

Originally I was going to write about the Court's unbearable fear of mathematics, admitting holistic review but fearing statistical systems to codify the same standards. But really the Court's decision isn't that awful, as constitutional compromises go. Liberal law professors can be trusted to take account of race without abusing their power, but numbers - like quotas and set-asides - are unseemly. Well, fair enough.

And the editorial world is consumed on the one hand with those who tout the benefits of racially diverse classrooms, and on the other with those like Justice Thomas who insist that the Constitution demands race-blindness. A self-assured few ignore the big picture to debate the subtleties of O'Connor's ubiquitous line-drawing. And I sit in what seems to be my minority of one, agreeing with Justice Thomas that racial discrimination is execrable and avoidable, but unable to find any mention of "race" in the Fourteenth Amendment, or to find any rule of race-blindness in our Constitutional history.

None of which is what I want to criticize here. I want to make a pitch against some mathematical analysis. Both opponents and proponents of affirmative action, even Clarence Thomas, have been known to measure the success of both Michigan's racial discrimination and Texas's "percent plan" by analyzing the racial makeup they yield. But if it's "intellectual diversity" that's so hellfire important, then who cares what color anybody is?

If intellectual diversity is the goal, then schools should measure their intellectual diversity, however they can, not their racial diversity. If racial diversity per se is the goal, the schools should say so.

Imagine two elite universities, both with an impressive and broad range of opinions. Suppose that the opinions are identical in each group, but one is a wash of white faces while the other is racially diverse. As I understand it, those who insist on intellectual diversity alone claim to be indifferent between the two. This is largely hogwash. Schools do care about what Thomas derides as "racial aesthetics."

And clever scholars (and there are many) can trot out second-order justifications - that the same opinion has a different effect from a different speaker, that a university should create racial role-models, that diversity teaches that "they" are just like "us," that there are some experiences that minority students have that white students can never have, and all the rest. But really it all comes down to the argument about whether the cart or the horse goes first. So long as race matters in America, universities will have a reason to care about race, and race will matter in America.

If the Court or the country is going to decide which reasons are valid, they should take themselves seriously. Judge universities by the intellectual breadth they accommodate, by the life experiences they welcome, by the lessons they teach, by the degree to which they right past wrongs. This is harder to do numerically, but well worth the effort. Just don't judge universities by the color of the faces they admit. I once hoped that we could all agree on that.

The writer maintains a blog at (http://baude.blogspot.com). The opinions expressed above are entirely his own, and not the product of his parents (who are liberal law professors) nor his employers (who are a conservative public-interest law firm).