Michael Barone gets his facts wrong

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On July 1, the Sixth Circuit Court of Appeals issued a 2-1 decision striking down Ward Connerly’s ballot initiative amending the Michigan constitution to prohibit affirmative action as unconstitutional.   The complex legal basis for the decision provided a perfect vehicle for misleading readers and obscuring the real issue.   Case in point: Michael Barone, columnist for the Washington Examiner, wrote an op-ed criticizing the decision entitled “Racial quotas, speech codes and the thought police.”

Barone describes the 6th Circuit’s decision as embodying the principle “[i]t’s racially discriminatory to prohibit racial discrimination.”  On the contrary, the decision embodies the idea that it’s discrimination to rig the rules of the game in a discriminatory way.   The Supreme Court precedent that Barone dismisses as “unpersuasive” is a body of law that seeks to protect minorities in the democratic process, particularly from majorities that would unfairly structure the rules of the game.

The cases cited in support of the 6th Circuit’s decision are rooted in the famous Carolene Products footnote that calls for special attention to “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” particularly if such legislation is “directed at particular religious, national or racial minorities,” and tends “seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”   In other words, you can’t rig the game to make it more difficult for particular minority groups than any other group to pass beneficial laws.  The answer to bad laws is to change the law, not to change the Constitution to make it more difficult for certain groups to change laws.

If Barone is correct that Ward Connerly’s deceptive ballot initiatives are consistent with the Equal Protection Clause of the 14th Amendment, and the Civil Rights Act of 1964, then why would they prohibit what both the 14th Amendment and the Civil Rights Act require?   If a school district was found guilty of segregating students by race, then the 14th Amendment would require that the district consider race in assigning students to schools in order to remedy the prior discrimination.   Yet, the Ward Connerly initiative would prohibit school districts from doing just that.   Similarly, if the state fired you because of your race, then remedying that discrimination under the Civil Rights Act by, say, awarding you a monetary settlement, would be discrimination on the basis of race, although it would be a beneficial type.

Barone’s claim that the Ward Connerly initiative is consistent with the Civil Rights Act of 1964 is simply untrue.  Opponents of the Act in Congress actually feared that the act would require, not simply permit, consideration of race in employment or contracting, where manifest racial imbalances were present.   No one in Congress seriously thought that the Civil Rights Act would prohibit race-conscious actions intended to benefit historically disadvantaged groups.  This fact was cited by the Supreme Court in one of the first Affirmative Action cases to reach the Supreme Court under Title VII, in United Steel Workers of America v. Weber.

Barone charges that the authors of the 6th Circuit’s opinion are “intellectually dishonest” and that their opinion is “corrosive to honest discourse.”   Yet, he implies, without being forthright about it, that admissions policy, “holistic admissions,” upheld by Justice Sandra Day O’Connor in Grutter is really a subterfuge for quotas.  The clear implication is that taking account of race in any way, just as one might take into account any other trait of a potential applicant, is a “quota.”   Quite the contrary, the thrust of the Grutter opinion was that admissions officers are permitted to consider race, among many other relevant characteristics, in fashioning a student body, so long as they do not employ a quota.  The race of an applicant cannot insulate that applicant from competition with other applicants.   Since the diversity of a student body, classroom, or workforce matters for a variety of important reasons, government officials should be free to take into account an applicant’s race, just as they can take into account a person’s life experiences and background.   Barone knows, or should know, that quotas are illegal and unconstitutional. His implication that quotas are the issue is not only untrue, it’s deeply misleading.

The broader narrative advanced by Barone’s op-ed, one that is offered by many other critics of affirmative action, is that government officials are merely trying to balance the ledger in a mechanical way, and that ‘racial advocates’ won’t stop until disparities are erased.  Nothing could be further from the truth.  What the critiques, often conservative commentators, don’t get is that there is a difference between trying to create complete numerical equality and trying to reduce severe and persistent disparities.

The critiques gloss over these disparities or explain them in vaguely racist terms.   Barone cites approvingly Hernnston and Murray’s 1994 book “The Bell Curve” for the proposition that abilities and talents are not equally distributed.   For someone who chides “legal elites” for intellectual dishonesty, Barone seems reluctant to make explicit his view, which is quite evident from his op-ed, that many non-whites are, as a group, intellectually inferior.   This is the thrust of the bell curve, which was an attempt to demonstrate the scientifically innate inferiority of non-whites.

Unfortunately, if we were as honest in discourse as Barone pretends to wish, he, like many other “ordinary Americans [who] know this,” would admit their belief in the intellectual inferiority of many non-white groups.  They would further admit that this intellectual inferiority, in their view, makes it “irrational” to devise compensatory policies to improve the severe underrepresentation of minority groups.

Advocates of race-conscious policies aren’t trying to use quotas or create balanced ledgers: they are simply trying to improve the opportunities for non-white groups and reduce severe, inter-generational disparities.   Ameliorating the harms from severe disparities in educational attainment, employment levels, health outcomes, etc. by opening the doors of opportunity to traditionally excluded groups is not the same thing as a quota or numerical balancing.   There is a meaningful difference.

Sadly, Barone is correct to say that campuses these days are too segregated, “everything but separate drinking fountains.”  This, however, is not a consequence of preferential policies nor illegal quotas.  It is a manifestation of a deeply segregated society, which make preferential policies necessary.   Is it any wonder that, given the persisting degrees of residential segregation – which is most stark for white students, who are the most segregated racial group – that racial integration on our campuses would be no easier than it is in our residential neighborhoods?   These facts, far from calling for us to prohibit them, call for a deeper and more searching understanding of why our society remains so segregated by race.   It boggles the mind to suggest that the reason for segregation is, as Barone suggests, affirmative action and integration.

Barone then suggests that race-consciousness, specifically quotas and preferences, are responsible for campus speech codes that “suppress any criticism and prohibit any statement that makes someone feel uncomfortable.”  This is completely untrue.   On the contrary, debates over affirmative action, and university policies that are race-conscious, are vigorous and ongoing, and have been for some time.   So far as I am aware, there isn’t a university speech code in the nation that prohibits criticism or discussion of race-conscious admissions policies.

Michael Barone’s assertion that the 6th Circuit’s decision represents the idea that “it’s racially discriminatory to prohibit racial discrimination” recalls Chief Justice Roberts’ pithy “the way to stop discriminating is to stop discriminating.”   While factually untrue and descriptively misleading accounts of the cases they describe, they make for great sound bites.

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