Sic Semper Tyrannis

Today I had a conversation with Marcia, my office’s administrative assistant, about the initiative petition seeking to allow Missouri’s voters to amend the state constitution to forbid the government to grant any sort of preferences based on race. The amendment is sponsored by Ward Connerly, a Californian who has been campaigning to end race-based affirmative action programs nationwide. Marcia (who is black and who, I believe, trusts that I am sincerely interested in helping the black community) asked me to explain why any fair-minded person would be in favor of such an amendment. Her questions and comments as we spoke reinforced to me how ineffective (or, possibly, disinterested?) the freedom movement has been in understanding and responding to the concerns of minorities regarding efforts to end race-based affirmative action. I decided to write this post as a way of answering Marcia’s question, and so that those who currently favor race-based affirmative action will understand how a fair-minded person could come to a conclusion different from their own.

I think readers of this post need to know that I used to be a pretty solid liberal. I grew up in the South, amidst constant reminders of slavery, the Jim Crow era, the Civil Rights movement, and its aftermath. I have seen and continue to see that racism persists in our society, to the detriment of many individuals who would otherwise have more opportunity than is currently afforded them. Ever since I left high school, one of my strongest interests in law and politics has been to play some small role in improving the chances for minorities to overcome the legacy of poverty and the racism that still exists in our nation to realize the traditional American Dream.

With that as my background, it should be no surprise that I supported affirmative action. Initially, it was because I found persuasive Lyndon Johnson’s explanation that “[y]ou do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say ‘You are free to compete with all the others,’ and still just believe that you have been completely fair.” With racism still a significant factor in American society, how could anyone not support programs that would do something to help out those against whom the deck seems perpetually stacked?

In time, my perspective on the issue has changed. Not because I think that racism has ceased to be a factor in contemporary America, but because I realized that–by and large–race-based affirmative action programs create solutions that are every bit as unfair as the circumstances that motivated their adoption. For every minority student who sees their dream realized only because an affirmative action policy dictated that they should be admitted (and I am explicitly excluding those minority applicants whose achievements alone would have secured their admission), another student’s dream is shattered for no reason other than the color of their skin or the ethnicity of their parents. I became persuaded that we were misguidedly attempting to perpetrate a second wrong in order to make a situation “right.” After all, nothing guaranteed that the students gaining an advantage because of their race had faced the sort of disadvantages common to others of their race–consider children of wealthy minority parents or children of recent immigrants whose families had not been involved in the travesty of slavery or segregation. Likewise, these policies were designed to guarantee that a number of white students would be denied admission to schools for which they were qualified, only because of the color of their skin. In a nation where we are striving to achieve an ideal where people are not judged by the color of their skin, how can we condone overt racial discrimination?

These are vastly difficult questions, because ours is a world in which there are limited resources (limited seats in elite schools, limited jobs in prestigious industries or firms, etc.), and someone will inevitably find themselves missing out on the opportunities they desire. It reminds me somewhat of the Calvin and Hobbes cartoon in which Calvin complains to his dad that something is not fair. The dad responds, “Life isn’t fair, Calvin.” And Calvin mutters under his breath, “I know, but why isn’t it ever unfair in my favor?” Of course, in the comic strip the quote was really funny because it was ironic. But there is no irony involved for those who have only been able to transcend racial barriers on the strength of raw determination.

There is plenty else to say on this issue, and I hope to address more points either in future posts or in response to comments on this post, but for me the question finally boiled down to a few simple ideas: We are a nation whose highest and best principles (if not their historically demonstrated ones) are firmly grounded in a philosophy of individual rights rather than notions of entitlement tied to class or social group. In the end, I decided that true fairness will not allow a government actor to intentionally and explicitly create a disadvantage for someone simply because of their skin color or ethnic heritage. If we ever hope to overcome the sordid legacy of racism, it must begin with a firm commitment that no government must ever again condone the notion that a person’s merit or value should ever be dependent on their race or ethnicity. While it is definitely possible that a person’s race or ethnic heritage may have resulted in their holding a unique perspective that a university admissions personnel would properly seek to bring to an incoming freshman class, it is the actual life experiences of the individual applicants that must make the difference in admissions decisions, not their race.