Affirmative action - may it rest in peace Affirmative action - may it rest in peace
It turns out that much-maligned Justice Clarence Thomas has his uses. During oral arguments over affirmative action the other day, he had a question for John Payton, a lawyer for the University of Michigan, who was arguing the supposed benefits of racial diversity. What about traditionally black colleges, Thomas asked. "Wouldn't the same argument apply to them?"
I was not present in the Supreme Court that day, so I don't know whether Payton paused in mute recognition that he had been checkmated. But then, good lawyer that he no doubt is, he replied that these colleges, although almost entirely black, "do have diverse student bodies." Well, sorta. Traditional black colleges and universities do have some nonblacks--17.6% overall, but less than 5% in some cases.
I cite the exchange between Payton and Thomas for three reasons. In the first place, both are black. When one African-American sits on the Supreme Court and another represents one of the nation's foremost universities in a case of maximum importance, we cannot still be talking about an era when black people were second-class citizens. Second, the faceoff represents both the virtues and the limitations of what we call diversity. Both are black, both are men, and yet they differ.
This is the sort of diversity universities ought to promote, only, of course, they don't. Last, we get to what ails affirmative action in the first place: Sooner or later, the argument for it gets so attenuated that it becomes downright silly. The reason is that some justification has to be found for violating the constitutional protection of equal treatment. Someone is being rejected on account of race. It is that simple. At Michigan, it was Jennifer Gratz. To do the sort of damage Michigan did to Gratz, you have to come up with a compelling reason.
At first, that was easy - the legacy of slavery and subsequent discrimination. But the passage of time has weakened that argument, so advocates have moved on to the supposed virtues of diversity. In and of itself, diversity is good. But if it is so crucial, why isn't it just as important at majority black colleges? The answer has nothing to do with diversity and everything to do with giving blacks an advantage.
It's one thing to overcome segregation. It's something else to use the increasingly distant past to justify an ongoing injustice. Jennifer Gratz was born in 1978. It is absurd to hold her accountable for slavery or Jim Crow, and unfair to handicap her because of her race.
She played by the rules we're all supposed to live by, and she wanted nothing more than to be judged on her merits. Instead, she got judged--critically--on her race. That's wrong--constitutionally, I think, and morally, I am sure. Stanley Crouch has the day off.
Originally published on April 3, 2003
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