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THE TELLING CONSERVATIVE ARGUMENT THAT "10 PERCENT" PLANS ARE UNCONSTITUTIONAL:
Affirmative action in college admissions has long been an issue where people's concern about the issue is disproportionate to the issue's importance. The truth is, only a few white and asian students every year at any given college are denied admission, and in most cases, the resulting injury is merely that such students are forced to go to a slightly less selective school. It's really not that big of a deal. But it inflames people, because it involves race, merit, and the madly competitive world of college admissions. Thus, judging by the behavior of civil rights organizations, you would think that this issue was really the make or break issue in terms of the advancement of the interests of minorities (rather than anti-poverty programs, more humane policing, or enforcement of antidiscrimination laws in such areas as housing and employment). Similarly, judging by the rhetoric of white conservatives, you would think that the advocacy of these programs discredits the civil rights establishment and represents a fundamental betrayal of Martin Luther King's legacy.

I am personally ambivalent about affirmative action. In an ideal world, I would hand out admissions to selective colleges solely on merit-- the recent revalations about how people secure spots for their children in the most selective preschools in New York by making huge monetary and nonmonetary contributions is a great example of the sort of corruption that is engendered when admissions committees have lots of discretion. And I think it is an outrage that the University of California continues to dole out admissions to its most selective schools to big donors. Standardized tests and lotteries have their drawbacks, but at least they make it harder for the not-so-gifted rich to buy their way into the best colleges and careers.

But we don't live in an ideal world, and in the world we live in, where atheletes, musicians, children of big donors, "legacies", and all sorts of others get in with substandard grades, letting a few minorities in offends no great principle. There are, however, compelling arguments against affirmative action in admissions that don't have anything to do with principle; specifically, such programs tend to benefit the most well-off of minorities, because it is very difficult for someone who has grown up in a poor neighborhood and survived 12 years of substandard education, with outdated books, schools full of guns and drugs, and a "Blackboard Jungle" learning atmosphere to suddenly score close enough to the cut-off SAT score to be put over the top by affirmative action. The black and hispanic middle class do very well, though.

In the wake of court rulings and ballot initiatives restricting affirmative action, a good compromise has arrived however; the "1 percent" or "4 percent" or "10 percent" solution. These programs guarantee admission into selective public universities to all those within the top X percent of their high school graduating class. I favor the compromise because it reaches down and picks up the poor kids who went to the lousy schools, rather than middle class minorities who really haven't been significantly disadvantaged. But the interesting thing is that I learned today that there is a strong conservative movement opposing such programs on constitutional grounds.

Read this post in an influential conservative weblog (stating, sensibly, that the X percent programs are constitutional), and then scroll down and read the feedback:

http://www.discriminations.us/archives/000257.html

Apparently, there are a lot of conservatives who believe that any government action that is intended to benefit blacks and hispanics, no matter how race-neutral, is unconstitutional. Blogger John Rosenberg answers that position well enough, but I find the whole discussion scary. The position that many conservatives apparently believe is that the Constitution is not only color-blind, but requires the continuation of white supremacy.

Put another way, all interest groups in a democracy are "rent seekers", i.e., they want the government to enact programs that benefit their particular group. Some of this rent seeking involves explicit preferences; there is a strong argument that such rent seeking by racial groups is constrained by the Fourteenth Amendment. But rent seeking also encompasses facially neutral legislation that nonetheless benefits the particular interest group. For instance, many farmers support relaxing the embargo with Cuba. That's a form of rent seeking, because the farmers' motivation is to increase their sales and their income. But that type of rent seeking is fundamentally different than a direct farm subsidy.

What the conservative responses on the discriminations blog seem to be indicating is that any effort by the government to improve the lot of blacks and hispanics is unconstitutional. Under that interpretation, the Fourteenth Amendment, intended to strip the badges of slavery and discrimination from blacks, actually prohibits any attempt to ameliorate the legacy of slavery. How that is different from out-and-out racism I do not know.
posted by Dilan at 7:09 PM