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RACIAL PREFERENCE VERSUS NONDISCRIMINATION

Curtis Crawford

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fter a 25-year silence on the subject, the Supreme Court has pronounced on the constitutionality of race-based affirmative action in university admissions. Those who had hoped that the issues would be wisely clarified and weighed must have been greatly disappointed. The two cases accepted for review, Grutter v. Bollinger and Gratz v. Bollinger, provided valuable information on how universities actually implement preferential admissions. But the Court’s rationale in Grutter followed a blind alley from which its deliberations never recovered. The litigation of these two cases revealed large racial inequalities in the treatment of applicants with similar academic credentials. For example, at the trial in federal district court, the Michigan Law School admission grid for 1995 (the year Ms. Grutter was rejected) was offered in evidence. For all applicants, identified by race but not by name, the grid included data on their Undergraduate Grade Point Average (UGPA), Law School Aptitude Test score (LSAT), and admission or rejection. Each cell of the grid combined a small range of grades and scores. The racial or ethnic groups designated by the School for preference were Black, Mexican, Puerto Rican, and Native Americans. White, Asian, Other Hispanic, Foreign, and Racially Unidentified applicants received no such preference. The size of the preference is indicated by the gap between the rates of admission for Favored Minorities and for Other Applicants. In the cell containing the median grade and score for all applicants (UGPA 3.253.49, LSAT 161-163), all Favored Minorities were admitted but only 5% of Other Applicants . Indeed, the 100% rate for Favored Minorities in the median cell was slightly higher than the 95% rate for Other Applicants in the top cell (UGPA: 3.75+ and LSAT: 170+). Down at the 30th percentile (applicants with grades and scores below 70% of their rivals), 83% of Favored Minorities but just 1% of Other Applicants gained admission. Farther down, at the 10th percentile level (UGPA 2.75-2.99, LSAT 148-150), the 6% admission rate for

Favored Minorities was still higher than the 5% rate for Other Applicants up in the median cell. In sum, Favored Minorities in the 10th percentile cell had a slightly better chance of admission than Other Applicants in the median cell, while Favored Minorities in the median cell had a slightly better chance than Other Applicants in the top cell.

The Supreme Court’s Contribution The general question before the Supreme Court was whether such a policy is constitutional. The framework for answering the question had been indicated in previous decisions: Since the policy requires the classification of people based on race or ethnicity by a state agency, it is presumably a violation of the Constitution’s Equal Protection Clause. However, this presumption may be overridden, if the policy is “narrowly tailored” to serve a “compelling state interest.” This framework seemed to provide a judicial freedom to reach major issues of right and wrong, while carefully weighing the public good. In the Michigan lawsuits, the Court could have asked whether placing large numbers of Black, Latino and Native Americans in our elite colleges and professional schools is a compelling state interest, which justifies racial preference by the government. What are the benefits and harms to be expected? Do the former, despite the latter, create a public necessity? These were not the questions the Court chose to put. The possible compelling interest it preferred to consider was “student body diversity.” In making this choice, it failed to face an insuperable, logical problem. According to the dictionary, “diversity” simply means difference. Student body diversity or difference is so indeterminate an interest that no reasonable judgment can be made as to whether it is compelling, or whether any given means is narrowly tailored to serve it. Such judgments are possible if, and only if, the type and extent of diversity are specified. Without such specification – without
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mounting his steed and riding off in all directions. Rather than student body “diversity” in general. Latinos and Native Americans. Is it morally permissible if there is a good reason? For example. thereby solidifying their continued interest and financial support. and blamed for debasing standards in the process. They have been praised for increasing minority access to business and professional careers. These programs have been upheld as a remedy for past injustice. in so many contexts. whites. Does the rule still hold. whether unequal treatment is permissible depends on whether there is a good reason for it. training. It was free. and my sense of right and wrong does not bar the unequal treatment in either example. under reason and law. if one thinks the reasons good. that a state university is financed by. is nonsense. indeed. It soon developed into programs conferring special treatment based on race. partly because people on both sides believe that their position is what justice requires. But deliberation and judgment concerning student body “diversity. whereby the requirements for selection are less exacting for members of the favored group. Supporters of racial preference think that the reasons for it are good: better. It suggests the proverbial warrior. we need to distinguish between unequal treatment in general. but again the point is that. one does not consider the preference immoral. Whether these are good reasons is disputed. than for many kinds 52 SOCIETY • MARCH/APRIL 2004 . We must dig deeper than usually occurs in public discussion to uncover and disentangle the relevant standards for moral judgment. should people ever be treated unequally without good reason? No. promotion and training for private and government jobs. The advantage is usually conferred by applying a double standard. almost never. that the existence of a general moral rule may seem impossible. in the second case. I had planned to supplement the Court’s constitutional inquiry with an examination of the underlying moral issues. The controversy is fierce. as a possible compelling interest. People are treated unequally for so many reasons. in the first case. the subject of deliberation could easily have been student body “diversity. The reasons seem good to me. The latter may or may not be a special case. Contemplating this essay before the Michigan decisions. and the like? Of course. the Court might have weighed. The Justices have said what the Constitution permits. Racial affirmative action began almost forty years ago with efforts to make sure that people were not being treated unequally because of their race. that unequal treatment is morally permissible when it is reasonable? The reasons commonly offered are. and owes a primary educational responsibility to. That there is not much to supplement makes it even more important for the public to revisit and clarify the moral considerations that bear on racebased unequal treatment. without which the quality and even the survival of the school might be jeopardized. experience.” without such specificity. They are supposed by some to have raised and by others to have undermined the self-esteem of their recipients and the value placed on them by others. especially in higher education and employment.” specified in kind and amount.stating the kinds and amounts of difference at issue – the Court cannot know what it judges. But if there is a good reason. the judgments have no basis. Michigan Law School’s stated goal of enrolling underrepresented minority students (kind) in sufficient numbers (amount) for extensive campus interracial interaction. In either view. to frame the question in a way that could be answered. Unequal treatment is simply treatment that favors one person over another. Decisions typically affected have been admission to college and graduate school. is it permissible to favor one applicant over another if they differ in ability. character. Ask yourself if and when you think that treating people unequally is the right thing to do. the residents of the state. and hiring. For example. the rest of us need to consider what the policy should be. yet condemned as an instrument of present injustice. Concerning something as important as the opportunity for education or employment. Preferential admission to a private university for the children of alumni is supposed to strengthen the school’s relationship with its former students. What if the individual difference on which special treatment is based has nothing to do with an applicant’s ability or need? Suppose that a public university gives an admissions preference to in-state residents. Unequal Treatment in General At the outset. Asians sometimes receive it. Others may think the reasons poor and the treatment wrong. But I suggest that we have such a rule. Without such knowledge. and unequal treatment based on race. or a scholarship preference for veterans. it may be required. Is it all right when there is no reason for it? That would be arbitrary. Nothing in the nature of “diversity” required the Court to do what it could not. that such scholarships are both reward and incentive for service in the armed forces. is it morally permissible to treat them unequally? It is not only permissible. These absurdities were self-inflicted wounds. The groups now regularly designated for favorable treatment based on race or ethnicity are blacks. with special rules. But contrary views cannot both be right.

According to this view. If members of the previously excluded groups are favored on the basis of race. ‘Preference’ may refer to any unequal treatment. They were still held back by deficiencies in ability. not for every individual. which would assist many disadvantaged individuals. housing. The legislatures. state and national levels. schools. is not the only care of the republic. Does the rule. or as unequal treatment that one disapproves of. if the rule for unequal treatment based on race is the same as the rule for unequal treatment in general. But when unequal treatment on a particular basis is barred as a matter of right. still hold when it is based on race? During the campaign to overthrow American discrimination against blacks and others. Was the moral principle behind this legislation mistaken? For blacks it can be seen as a two-edged sword. but ascribed equally to every person in the United States. anti-black discrimination had dissipated. in certain circumstances. But such a remedy would require important exceptions to the general ban on racial discrimination.” Rights are not absolute: they may be overridden by superior rights or by public necessity. that unequal treatment is morally permissible when there is good reason. though illegal. businesses and unions that practiced racial discrimination were not asked about their reasons. barring unequal treatment in voting. Other (sometimes conflicting) rights and interests must also be protected. ‘Discrimination’ is variously defined as different treatment. If everyone is granted the right not to be discriminated against on account of race. This conclusion is valid. Equity and Compensation Some argue that there is a right to equal participation for racial groups. favorable or unfavorable in the latter). oppressive treatment. color or national origin. the right of others not to suffer racial discrimination is denied. I define both ‘preference’ and ‘discrimination’ as forms of unequal treatment (favorable in the former case. A plausible remedy would be racial preference. though momentous. public accommodations. and the corresponding duty not to discriminate. since the basis for assistance would be individual injury. and the practice of current. The moral dilemma of racial preference for some versus racial nondiscrimination for all might be avoided if. Based on this moral principle. would often occur. public facilities. status. laws were enacted between 1940 and 1970 at the local. no matter what reasons the discriminators might offer. professions. ‘Racial preference’ and ‘racial discrimination’ will always mean unequal treatment based on race or ethnicity. not racial identity. Any claims that their policies were “reasonable means to legitimate ends” were rejected as rationalizations for racial injustice. or only to unequal treatment that one disapproves of. as compared with the average American. training and motivation attributable at least in part to past discrimination. Any society that decides to end an era of discrimination faces the same moral dilemma. The antidiscrimination statutes left blacks with two important disadvantages. Such a program would satisfy the racial nondiscrimination rule. their actions would be morally acceptable. Instead of racial preference. such as chronic and substantial racial discrimination. Any person. the possibility of helping the victims of past discrimination through racial preference is lost. But it would help only a fraction of those who currently benefit from race-based affirmative action. The right not to be racially discriminated against was not reserved for members of particular groups. No one doubts that the social and economic condition of American blacks would be better. they were simply told to quit. absent their history of racial oppression. In this inquiry. which overrides the individual right to nondiscrimination. the right to racial nondiscrimination were superseded by a higher right or by public necessity. people are not free to discriminate on that basis simply because they have good reasons. A belief in this right is often the RACIAL PREFERENCE VERSUS NONDISCRIMINATION 53 . preference and discrimination. health care. ‘equal participation’ means equal success in wealth. people define these terms differently. But are the rules the same? Before tackling this question. education and employment. it was never suggested that if the discriminators had good reason. The overriding conviction was that racial discrimination was morally out of bounds. on account of “race. who could demonstrate such treatment in his own case would be eligible for the assistance. Hence they conclude that there is nothing morally wrong with the unequal treatment they advocate. clarification is in order. but for the average person in each group. banning adverse discrimination to be sure. Are there superior rights or public necessities that might override the right to racial nondiscrimination? The right to racial nondiscrimination. confusing and misunderstanding each other unnecessarily. regardless of race. Two words. a program could assist those who had suffered specific. are inseparable from a discussion of unequal treatment. Without realizing it. until both the effects of past. There is a way to slice through the dilemma. and they faced the prospect that discrimination against them in the future. but also pro- hibiting any discrimination in their favor. These statutes established the right not to be discriminated against.of preference that are generally accepted. as unequal treatment. and achievement.

the legislature may compensate for injustice that was lawful when it occurred. a person may be compensated if injured by racial discrimination. Adverse discrimination in education and employment would be especially relevant. Moreover. the standards of proof. If such a right exists. In extraordinary circumstances. geographical. the right of just compensation would be wholly consistent with the racial nondiscrimination rule. Based on statistics that crime by Blacks is much more frequent than by Whites. Based on data that discrimination against Blacks is much more frequent than against whites. it could declare every black a victim. It is regarded as just. after the overthrow of de jure segregation. and so on? The claim to a right of equal success for racial or ethnic groups does not survive inspection. Argentines. Cubans. Asians. of racial warfare. say. Sioux. Pacific Islanders. Such compensation would not have constituted special treatment based on race. Dominicans. how would the groups that individuals belong to acquire it? Moreover. Aleuts. But the right of just compensation requires proof of specific injury to the person who invokes it. regardless of the race of the persons involved. if no injury has occurred.moral basis for affirmative-action goals. to match their share of the general population. adopted for the purpose of increasing the percentage of “underrepresented” minorities in the higher echelons of education and employment. no basis exists. properly applied. Individuals in this country do have the right to equal respect as members of the body politic. Congress is free at any time to authorize a program of special assistance for people whom the law has failed to protect from discrimination. If individuals who have been subjected to racial discrimination can be given compensatory help without running afoul of the nondiscrimination rule. or. in their own minds if not in the legislative process. In such a program. If individuals have no right to equal success. Various ways have been or could be enacted. A legislative decision to compensate an entire racial group could not meet this criterion. without involving racial preference. The right to be heard. it is not preferential treatment based on race. though injured because of their race. Arabs. segregated schools. to the persons injured and occasionally to their immediate families. to persons formerly enslaved. it could declare every Black a criminal. to name a few? Moreover. some rights may have to be suspended. Compensation is awarded as a remedy for injury. commercial. not fleeting or insignificant. Irish. that is sufficient basis for compensation. and experienced in this country. A Public Necessity to Prevent Racial Warfare? Everyone would agree that in time of extraordinary peril. under present law. Puerto Ricans. Slavs. and the compensation may take the form of preferential treatment. artistic. it would be discrimination masquerading as compensation. This helps them to think of racial preference as compensation. why not an entire racial group? Could we thus escape from our moral dilemma? Is it possible that all we need is a finding by the national legislature that discrimination against certain racial groups has been and continues to be so pervasive that every member of the group is entitled to compensatory preference? Many proponents of affirmative action proceed as if such a finding had occurred. Jews. Koreans. blacks. political. why not other groups— religious. since it does respond to injury. social status or achievement. rather than discrimination. occupational. if these groups have a right to equal attainment. Italians. and might overrule it. Is this such a time? Is there now a clear and present danger to the republic. by which the right to compensation can redress individual injury to members of previously excluded groups. Mexicans. sexual. But since this preference is based on individual injury rather than racial identity. Navaho. would have been compensated because of their injury. after the Civil War. to be avoided only by racial preference in education and employment? The 54 SOCIETY • MARCH/APRIL 2004 . prevents it from requiring racial preference. why not each ethnic group—Poles. Chinese. if each racial group— whites. but this has never implied the right to individual equality of wealth. If unlawful injury is shown. Native Americans—possesses this right. The recipients in both instances. Congress might have awarded preference. The program could require that an applicant present clear and convincing evidence of having suffered racial discrimination that was chronic and substantial. it can overrule the right not to be deprived of one’s property involuntarily. a legislature permitted to stereotype racial groups sympathetically would be free to do the contrary. A legislative finding of this sort. it needs no other. and the scope of the remedy would be the same. Colombians. Japanese. though based on evidence of injury to some. Moreover. would be mere supposition concerning others. to persons who had been educated in substandard. Does the right of some people to compensation supersede the right of others not to be discriminated against? The right to just compensation is certainly a powerful right: by requiring the payment of damages. athletic. For example. it would conflict with the right to nondiscrimination. But the nature of the right to compensation. for example. having that basis.

when race or ethnicity is on the scale. they argue that when decision-makers have to meet goals for increasing minority participation. employment. we (wisely) insist that the reduction of crime does not justify such means. No one advocates this. including those against discrimination. given medical treatment. The dispute concerning race-based affirmative action reaches only certain aspects of education. (4) permit discrimination favorable to blacks. or by permitting policemen to violate the rights of suspects. unlike discrimination based on local or idiosyncratic factors. (3) exempt education and employment from the nondiscrimination rule. A Public Necessity to Achieve Diversity? Some. they could perhaps be reduced by licens- The Right to Racial Nondiscrimination We have found that. is not a public necessity. ing citizens to steal the property of thieves. public parks. be generally enforced. this policy prevents violations of the right to racial nondiscrimination by making certain that they occur. Racial goals and quotas are therefore imposed. It purchases freedom from possible misconduct with the coin of assured misconduct. There is a public necessity that the laws. government contracting and elections. there is an overwhelming consensus that racial discrimination should be forbidden. But the supporters of affirmative action do not ordinarily justify their programs in these terms. to ensure that people who might discriminate will not do so. but proposition (a) is false. Is this consensus warranted? Recall some of the considerations that produced it. Using this definition. It enforces the rule by breaking it. why not leave people free to practice racial discrimination when there seems to be good reason? The problem is that. shopping. almost never. almost always think there is good reason. athletic events. But among supporters of racebased affirmative action. Scrap the Right Entirely? This option would require us to repeal our antidiscrimination laws and to reject the moral principle on which they are based. Should the United States have chosen (or now choose) one of these options? 1. giving a broader definition to public necessity. prejudice and partisanship RACIAL PREFERENCE VERSUS NONDISCRIMINATION 55 . convicted of a crime. First. but there is no necessity that the rights of some be enforced by violating the rights of others. Absent public necessity. since those in power are mostly white. served at a restaurant. Second. all one needs in order to ensure racial and ethnic variety in colleges and workplaces is not to discriminate. one’s ancestry is something over which one has no control. With respect to housing. In a society composed of many different groups. but proposition (b) is manifestly untrue. discrimination based on race is readily imitated throughout a society. (a) that racial diversity in education and employment is a public necessity.urban riots of the 1960s may have aroused this fear. Still. Crime rates in our society are egregiously high. “diversity” often means having a larger number from “underrepresented groups” than would occur without racial preference. The supposed rights and necessities either do not exist. If by “diversity” they simply mean difference or variety. (2) define the right more narrowly. I know of no convincing evidence that the danger of racial warfare is present or clear. restaurants. or (5) permit discrimination favorable to all “underrepresented” minorities. They believe that unlawful discrimination against nonwhites in education and employment is common. if we recognize a general moral right to racial nondiscrimination. law enforcement. credit. and (b) that racial preference is essential to achieve such diversity. services and opportunities remains under the antidiscrimination rule. etc. But this goal. transportation. and those whom it favors. There is no public necessity that racial groups be represented in education or employment in proportions higher than warranted by the fitness of their members. motels. proposition (b) is true. reason is extremely corruptible. by institutions over their officials or by courts over institutions. Paradoxically. those who are discriminated against. When racial or ethnic advantage is at stake. health care. A Need to Reduce Bias against Minorities? Some argue that racial preference helps to prevent racial discrimination. The public benefit alleged in justification is an additional reduction in discrimination against people of color. though desirable. proposition (a) may be true. Nevertheless. antiminority discrimination is effectively prevented. a person’s racial or ethnic identity ordinarily has nothing to do with the merits of the case: whether one should be rented an apartment. One could (1) scrap the right altogether. racial preference cannot be justified as serving a superior right or a public necessity. whether racial preference goes or stays. this exchange is unacceptable. or do not conflict with the right to nondiscrimination. theatres. Those who practice the unequal treatment. individually and impartially assessed. Third. access to other goods. Is there another approach that might clear the way for racial preference? The moral right to racial nondiscrimination could be expunged or limited. and so on. uphold two propositions.

a spouse. But if the offense is unequal treatment motivated by prejudice. whether the discrimination is motivated by prejudice or not. They insist that the right of Blacks. Since people generally underestimate the influence of prejudice on their own 56 SOCIETY • MARCH/APRIL 2004 3. without sacrificing anyone’s right to be free from “malign” discrimination. and for the person discriminated against. More important. Nondiscrimination is not easy. unwilling to admit that they receive any more than their share. withdraw the prohibition from the two areas in which preferential treatment might be most helpful for members of a previously excluded group. to know whether the choice is unlawful. This would clear the way for “benign” discrimination in behalf of a previously excluded group.. and opportunities by discriminatory acts. The favored groups. entertainment. has no champions. The exception could apply to all areas of life that are covered by the rule. The government. bitter. including housing. since it is the only standard that places no one at a disadvantage because of his group membership. become resentful.transform reason from an impartial judge into a biased and sophistical advocate. They fear that if everyone may discriminate. Hispanics and Native Americans not to be discriminated against in education and employment be held inviolate. hostility and violence. But an exception this large. Moreover. by bringing them more quickly into prestigious occupations and encouraging their fellows to aim higher and work harder? A decision to exempt education and employment from the ban on discrimination would place both society and government in moral contradiction with themselves. employment. It is foolish to imagine that relationships among diverse racial or ethnic groups in a democratic society can be cooperative or even peaceful. racial discrimination generates racial oppression. then. hostile and violent. where racial discrimination is widespread. by making Blacks an exception to the nondiscrimination rule. criminal and civil justice. its core is a state of mind. or a legislative representative would be invasive or unenforceable. such as whether the defendant employed a double standard. in its roles as educator and employer. Favor Blacks Only? This would respond forthrightly to the moral dilemma posed early in this essay. the court must examine the reasons claimed by the discriminator. this option is overwhelmingly opposed by supporters of affirmative action. sullen. as victims of past oppression or present poverty. shopping. would freely practice here that which elsewhere it must prosecute and punish. voter registration. But these rationales are never lastingly persuasive to groups whose status they reduce. its core is an act. Such broad contradictions are fatal to the public consensus that racial discrimination is ordinarily unjust. by themselves or in their behalf. they would tend to assume that their own discriminatory acts were lawful. enforcement of the law would be impeded. Redefine Wrongful Discrimination? Instead of forbidding all unequal treatment based on race. while discrimination against them was not. The society. respond in kind. finance. The exception faces two ways: Blacks would gain the privilege of favorable discrimination. as biologically or culturally superior. 4. while all others would lose the right . business. which could easily sink the rule. feeling it oppressive and unjust. Those discriminated against. would nevertheless be treating it in crucial areas as beneficial. for which there are objective criteria. Exempt Education and Employment? No one contends that racial discrimination should be outlawed in every kind of decision: to bar it in choosing a friend. A major reason for antidiscrimination laws is to protect people from being deprived of products. services. motives. Wherever practiced. When the offense is defined simply as unequal treatment. alienated. etc. What is proposed instead is to limit the exception primarily to employment and higher education. and exaggerate its influence on others’. there has been no serious effort to amend the statutes by this redefinition. But this deprivation is just as great. as well as education. but it is the only standard to which members of every racial and ethnic group might agree. we might bar such treatment only when it is motivated by racial prejudice or hostility. Discrimination is not benign to the person it injures. by making the process of determining guilt more difficult and less reliable. most of the victims in a predominantly white society would be people of color. and be discriminated against. 2. Why not. having decided that racial discrimination in general is wrong. Rationales can be developed for organizing a society on the basis of racial or ethnic discrimination: favoring some groups as original inhabitants or successful conquerors. trying to judge their validity and his honesty. Moreover. and government contracting. Whether for these or other reasons. a consensus that is necessary for general adherence to antidiscrimination laws. it would be harder for the person who makes a discriminatory choice. A principal disadvantage to this approach is the extensive harm that it would legalize.

if these three groups. Blacks. Jews. perhaps remove. in effect. when the nation decided to ban racial discrimination. the growing assumption of a right to racial preference among its recipients. there remains an argument based on what is desirable for the country. but by creating affirmative-action programs. But it is surely implied. properly applied. sometimes the victims. this argument contends. have nevertheless upheld race-based affirmative action as serving a generous and noble cause. Other groups. but they all have a place in the spectrum of past injustice. and other whites could all point to group wounds from past discrimination. is the option we have chosen. Can this option meet the burden of justification required for withdrawing the right to racial nondiscrimination in areas where it is essential? How large is the burden that must be met? The reasons for permitting a withdrawal of this right should be overwhelming. such as the right to compensation for past injury and/or a right to equal racial success. Moreover. The historical experiences differed in form and severity. the spread of racial discrimination in education from the admission of students to the selection of faculty. the discrediting of minority attainment as due to favoritism. We have argued above that the latter right does not exist and the former right. Option 5 nevertheless withdraws this right from persons who are not “underrepresented” minorities. this permission should be favored by majorities within the groups thereby discriminated against. the achievement gap that separates them from the rest of the population? Not because such help is a group entitlement. and other Asians. and the content of courses. which would exempt education and employment from the nondiscrimination rule. but because it is a good thing to do. Japanese. often ill treated in the past. If. whites do not receive preference and are often discriminated against. and so on. For these and other reasons. Asians are sometimes the beneficiaries. But Blacks were not alone. Slavs. But Native Americans could cite the conquest and obliteration of tribes. Arabs. would scarcely think their own histories worth nothing in the bidding for preferential treatment. American Indians. a basis for this exception would be clear. Supporters of racial preference for black. in the duration of effects and in the proportion of members involved. even if willing to concede that Blacks had suffered most. One could try to confine affirmative action to Blacks by emphasizing the unique aspects of their oppression: their abduction and life here as slaves. A major argument against this option is the absence of a principled basis for making blacks the only beneficiaries of racial discrimination. Italians. Many Americans. and by the argument that they have no more reason to complain when disadvantaged by racial preference. Hispanic and Native Americans in education and employment typically invoke principles of racial justice. the reduction of standards in order to accommodate less-qualified applicants and participants. by the view that racial preference at their expense is morally permissible when serving a good purpose. If arguments from racial justice and public necessity are set aside. blacks were the only group to have suffered it in the past. 5. and Native Americans receive racial preference and are supposedly not discriminated against. and other Latinos. That many whites and Asians have lost their right to racial nondiscrimination in these areas is not made explicit. were helped through preferential treatment to reduce. Under them. whose own right to nondiscrimination is abrogated by racial preference. But outweighing the benefits they envision are the harms they disregard: the rejection of better qualified Whites and Asians in admissions and hiring. or a public necessity. By rejecting Option 3. We have argued also that the plea of public necessity is unfounded. Favor “Underrepresented” Minorities? It may be argued that this. the severe restrictions on immigration and citizenship. Mexicans.not to be racially discriminated against when blacks are the beneficiaries. RACIAL PREFERENCE VERSUS NONDISCRIMINATION 57 . it supports discrimination in favor of other groups as well. Poles. does not require special treatment based on race. Asians. the spread of racial discrimination in employment from the hiring of workers to selection for training and promotion. If historical disadvantage warrants discrimination in favor of Blacks. we have confirmed that the right to racial nondiscrimination is essential in these two areas. Chinese. Latinos. Puerto Ricans. not by amending the nondiscrimination statutes. Would not America be a better place. a policy of confining race-based affirmative action to Blacks has never garnered widespread support. than if the preference had been based on place of residence or family connections.

not the bureaucracy or the judiciary. No. or to just compensation for past discrimination? Or by a public necessity for racial preference as a means to racial peace. Besides excluding racial preference. But their view of Option 5 is clear enough. The arguments against these limits were in every case preponderant. promotions. the growth in racial consciousness. The racial nondiscrimination rule does not preclude compensation for specific injury. or modified in these areas to allow preference for blacks only or for all “underrepresented” minorities. the option fails the first part of the justification test. to persons who labor under social. and college admissions should be based strictly on merit and qualifications other than race or ethnicity?” From 94% of Whites and 84% of Asians.org. His last article for SOCIETY was “Racial Promotion through Racial Exclusion. be overridden by certain higher rights or public necessities? By a right to equal success for racial groups. no one may be assisted via racial preference. cultural.Ditto. the second part.DebatingRacialPreference. the right not to suffer racial discrimination is thereby denied to others. 7/11/01] Our inquiry began with a moral dilemma. After long exposure to the policy. though belonging to everyone. [Question #50. or admitted to college. We cannot preserve the right to nondiscrimination by systematically violating it. we can respond to many people who need and deserve help. 5. or to the prevention of discrimination? These supposed rights and necessities were found to be either non-existent. If all have the right not to be subject to racial discrimination. Since the good in Option 5 has never been shown to match (much less to overwhelm) the harm. partisanship and resentment in colleges and workplaces. We cannot teach our children that racial discrimination is wrong if we persistently discriminate. But. The participation of the private sector would be voluntary or contractual. without breaking or bending the rule. the answer was that such decisions should be based on merit. It does not bar special assistance. They are never asked in so many words whether they approve their loss. or not in conflict with the right to racial nondiscrimination. The role of government would be primarily determined by the legislative branch. there are other important respects in which a desirable assistance program would not imitate current affirmative action. or that hiring. the Washington Post put the question in these words: “In order to give minorities more opportunity. www. or economic disadvantages.” Volume 37. promoted. Should we rescind or limit the right to racial nondiscrimination. In 2001. We cannot have the individual and social benefits of the nondiscrimination rule if we decline to obey it. in public opinion polls. just counsels of good sense. dropped from education and employment. provided that the purpose of the help and the criteria for eligibility are colorblind. They will be easier to meet in a racial policy that we really believe is right. instead of lowering standards to accommodate inferior ability. The nondiscrimination rule could be scrapped altogether. most White and Asian Americans remain unconvinced that it warrants the revocation of their own right to equal treatment regardless of race. in order to make racial preference available? Five options were considered. to racial diversity. 58 SOCIETY • MARCH/APRIL 2004 . It would help people increase their ability to meet regular standards. Washington Post Racial Attitudes Survey. July/August 2000. Curtis Crawford is the editor and co-author of the website. do you believe race or ethnicity should be a factor when deciding who is hired. Two ways out of the dilemma were examined. not compulsory. not race or ethnicity. by the public or private sector. These guidelines are not mandates of the nondiscrimination rule. The rules and operation of the program would be honestly described and freely accessible to public scrutiny. May the right to racial nondiscrimination.the deterioration in the moral authority of the racial nondiscrimination rule. and therefore incapable of overriding it. if racial preference is authorized for some. redefined to cover only prejudiced or hostile acts. especially in education and employment.