Line Drawing on Affirmative Action

As expected, Judge Roberts is getting a grilling from Senators Kennedy, Biden and others on the Senate Judiciary Committee regarding affirmative action. Roberts views on this are pretty well known, he doesn’t like affirmative action. However, like all Senate hearings, this confirmation hearing is looking to the past to ask questions instead of asking questions about the future impacts of issues, as Professor Jeffrey Rosen suggested in this New York Times article (subscription required-sorry) which originally appeared on August 28 in the NY Times Magazine.

I am not sure what motivates Judge Roberts' opposition to affirmative action, but my motivation has always been about lines, that is where do we draw the lines defining the scope of affirmative action? The limits of affirmative action, whether they be temporal, racial, socio-economic or otherwise, have been the downfall of the policy.

No rational observer of history can deny that racial discrimination did not exist in this country. However, affirmative action was not the best program to address past inequities, merely the easiest. It was easy for the government to say, "We should cut people a break to make the playing field level," but the result of the policy was a counting game. Looking at a class of people and counting became the determination of affirmative action. Call it what you want, quotas, reparations, or fairness, but proportional representation became the goal and all other standards became secondary. Of course, affirmative action proponents would say, "the discrimination happened, you have admited as such and implicitly admit that some sort of correction was necessary." Indeed, but affirmative action means that when dealing with resources which are finite, a zero-sum game exists. In order for someone to get a break, someone must lose out, perpetuating some form of discrimination.

But any rational observer of history will note that we cannot go back and alter history, the plain fact of the matter is that affirmative action exists. Fine, but that returns us to the original problem--where do you draw the lines going forward? Let me offer a hypothetical. Student A and Student B both come from households that fall well below the poverty line. Both children live and went to school in districts that were poorly funded, received free lunches, received government subsidized health care and were in all respects equal in terms of academic preparation, i.e. identical 3.0 GPAs and 1200 SAT scores. These students worked hard to get where they are, ready for college

You should know where I am going. Student A is black and comes from inner city Atlanta, Student B is white and comes from rural southwest Georgia. If both applied to the University of Georgia, the black student has a much greater chance of getting in, a greater chance that can be statistically calculated, merely because of his race.

But this is an old problem. What Professor Rosen pointed out in his article is that technology and the changing demographic nature of the country are going to wreak havoc on contemporary notions of affirmative action as currently formulated.

If current demographic trends continue, over the next few decades the United States will become more diverse. The Census Bureau estimates that the number of non-Hispanic whites may shrink to less than half of the population before 2060 and that Hispanics will soon outnumber blacks. As intermarriage rates continue to rise, more and more Americans will consider themselves multiracial. This is a recipe for conflicts over affirmative action and public entitlements.

Multiracial students will present the greatest challenge for the country and the courts when it comes to affirmative action. Let us consider an extreme example. A multiracial child is born of parents in South Carolina. The white mother can trace her ancestry to slaveowners in plantation South Carolina. The black father can trace his ancestry to black slaves of the North Carolina tobacco country. The child is applying to colleges and is denied admission to her top choice schools for whatever reason. The child then says, because she is partially black, she is entitled to admission or at least reconsideration for admission under affirmative action. The question is, is she entitled to such treatment because she is 50% black?

What if we as a society say yes, the above mentioned child is entitled to affirmative action consideration? So here is another line question. If the above mentioned child qualifies for affirmative action treatment, where do we draw the line as far as mixed race children go. Does the child need to be 50% minority? 30%? 25%? What about technology that could prove minority genetic make-up despite the fact that the child looks predominantly white, or predominantly asian? Professor Rosen takes up the case:

As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a [professor] at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage. "I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,'" he said. '"The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.'"

Rosen and Amar then postulate a legislative reaction in a state that says the social understanding test is too speculative, so you have to have a genetic test and anyone with a drop of minority blood would be eligible for affirmative action treatment. As Rosen writes:

"It would recall the shameful history in times of slavery and Jim Crow," [Yale law professor Paul] Schuck told me, "in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites." Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. "I think as pressure on affirmative-action programs increases," he said, "affirmative-action programs will have to make refined judgments about eligibility."

If one drop of blood was sufficient to make a person a slave in Pre-Civil war America, allowing the same standard for qualification under affirmative action has not leveled the playing field, but made it more combative. The weapons of the combat will be based on which people can afford the most precise genetic tests. How, in a society that values equality of treatment under the law, do we justify such a concept? How, as a society of laws, will the legislatures and the courts deal with such line-drawing?

I have not even explored other issues such as the economic issues. How can we say that a black child born of rich, upper middle class parents is entitled special consideration as opposed to a poor white child from Appalchia? What about immigrants from Africa or Latin America that are clearly of a particular race, but, because they are first generation immigrants, have not been subject to the history of discrimination in this country?

These are the questions that should be asked of Judge Roberts, but won't be. Partly because Judge Roberts is smart enough to know that such issues will be coming up in the court system, and partly because the Senate is notoriously bad about looking forward, we won't get answers. But at least if the question were asked in such a public forum, the real debate can begin in America about what are the appropriate lines to draw in affirmative action or even if we still need affirmative action.

Posted by Matt Johnston at September 14, 2005 1:20 PM