Opponents of affirmative action in university and college admissions have long decried the disingenuous methods the institutions use to circumvent legal restrictions on the practice. Before the recent decision in SFFA v. Harvard, universities and colleges were legally permitted to consider applicants’ race, sex, and ethnicity in order to obtain the educational benefits that flow from a diverse student body, as long as they considered these characteristics only as “a ‘plus’ factor in the context of individualized consideration of each and every applicant.” But the evidence revealed by the plaintiffs in SFFA and prior lawsuits indicated that institutions of higher learning had expanded this loophole wide enough to drive a truck through. Far from using race and ethnicity merely as a plus factor in an individualized evaluation of applicants, universities and colleges were using race and ethnicity as the most important, if not the determinative factor in a large number of admission decisions. With the decision in SFFA, these critics have been warning that universities and colleges will continue to disingenuously circumvent the law by finding other ways to identify applicants by race and ethnicity.
I am certain that the critics are correct about this. Universities and colleges have and will continue to use disingenuous methods to evade the legal restrictions on race- and ethnic-based decision making. As a faculty member at Georgetown, I witnessed this behavior in the past, and the day that the decision in SFFA was announced, the President of Georgetown University made it pretty clear that the University intended to continue to evade the restrictions in the future, distributing a broadcast e-mail stating,
While we are deeply disappointed in today’s decision and will continue to comply with the law, we remain committed to our efforts to recruit, enroll, and support students from all backgrounds to ensure an enriching educational experience that can best be achieved by engaging with a diverse group of peers.
The question is whether this type of disingenuous behavior is a good or bad thing. The critics of affirmative action describe the behavior of universities and colleges as corrupt. Is it? Or is it the kind of noble action that libertarians should respect?
Actually, it is both. How can that be?
The answer is that in SFFA v. Harvard, the Supreme Court gave the same answer to two different questions. The first was whether the Equal Protection Clause of the Fourteenth Amendment allows public universities to consider race and ethnicity in their admission decisions. The second is whether the Title VI of Civil Rights Act allows private universities to consider race and ethnicity in their admission decisions. The Equal Protection Clause applies only to government action. The Civil Rights Act applies to the actions of private parties.
There are good reasons to interpret the Equal Protection Clause as prohibiting the government from treating citizens differently on the basis of their race or ethnicity. The government is the agent of the citizenry, all of whom are required to support it with their taxes and possess equal status as its principal. As the agent of all citizens, government has a fiduciary duty to act exclusively in the interests of all citizens–in the common interest. A government that acted to advance the interests of some racial or ethnic groups over others would be violating this duty.
But more importantly, as our history amply demonstrates, racial and ethnic distinctions are an especially fertile ground for political exploitation. Because race and ethnicity are immutable and easily identifiable characteristics, racial and ethnic groups are ideal vehicles for political rent seeking. Politicians can always curry votes and amass political capital by valorizing or demonizing the members of particular racial and ethnic groups.
The argument for interpreting the Equal Protection Clause as prohibiting all racial preferences is not that we are a color blind society. It is that we absolutely are not a color blind society. And for that reason, we dare not empower politically motivated officials to distribute public benefits and burdens on the basis of race and ethnicity.
This means that with regard to public universities like UNC, I regard disingenuous efforts to continue the practice of racial and ethnic preferences as corrupt. The purpose of the Fourteenth Amendment is to place limitations on government power. State agencies that surreptitiously circumvent these limitations are undermining the structure of liberal government.
The same logic does not apply to the Civil Rights Act, which is designed to regulate the behavior of private individuals and entities. The purpose of the Civil Rights Act is prevent private parties from attempting to disadvantage and degrade others because of their race or ethnicity. It is designed to prevent employers and educational institutions from excluding or placing special hurdles in the way of minorities due to racial or ethnic animus.
The Civil Rights Act should obviously be interpreted to prohibit such oppressive discrimination. But there is no reason to interpret it to prevent private parties from acting for the benefit of racial or ethnic minorities. Group self-help is the traditional way socially subordinated minorities overcome unfair biases. Members of minority groups who succeed often want to extend hiring or educational preference to others from their group in order to “give something back to the community.” And those who believe that justice demands special help to minorities to overcome the effects of unjust past discrimination will want to engage in voluntary affirmative action. There is no reason to interpret the Civil Rights Act as prohibiting private parties from using racial or ethnic preferences for such beneficent purposes.
We live in a pluralistic society in which different people hold different conceptions of what justice demands. Some may believe that justice requires that citizens never assign benefits or burdens on the basis of race or ethnicity. Others may believe that justice requires race- and ethnicity-conscious decision making to remedy the effects of past invidious discrimination.
In such a pluralistic society, one may have the right not to have his life prospects reduced because of the unfair racial or ethnic prejudices of others. This is the right the Civil Rights Act was passed to vindicate. But no one has the right to insist that the state impose his conception of justice on others. This implies that Title VI should not be read as prohibiting private parties from engaging in benign affirmative action.
An interpretation of Title VI that prohibits private universities and colleges that are not engaging in invidious discrimination from pursuing their particular conceptions of justice cannot be morally justified in a pluralistic liberal society. Such a law is an unjustified infringement on individual liberty.
This means that with regard to private universities and colleges like Harvard and Georgetown that consider racial and ethnic diversity to be a requirement of justice, I regard disingenuous efforts to continue the practice of racial and ethnic preferences to be the kind of noble action that libertarians should respect. The schools are simply making every effort they can to avoid the restrictions of what they consider an unjust law.
The Equal Protection Clause restrains government power in order to preserve individual liberty. Disingenuous action by state agencies to circumvent the Equal Protection Clause reduces the scope of individual liberty, and should be anathema to libertarians. The Civil Rights Act is a direct limitation on individual liberty. To the extent that it restrains liberty without moral justification, disingenuous action by private parties to circumvent it increases the scope of individual liberty, and should be supported by libertarians.
Personally, I do not believe that justice requires benign racial preferences. I also believe that such preferences are not only ineffective, but are a positive impediment to a more racially harmonious society. But, as a libertarian, I recognize that I have no right to force others to agree with me by enshrining my opinion in the law. If it has been, I cannot complain if those who disagree do all that they can to escape what they believe to be the law’s unjust demands, and I can and should admire them for doing so.