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The Abolition of Racial and Ethnic Preferences

June 26, 2013

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The Abolition of Racial and Ethnic Preferences

In America’s fifth year of having a black president, the five Republican-appointed Supreme Court justices had an opportunity on Monday to abolish racial and ethnic preferences for violating the 14th Amendment’s requirement of “the equal protection of the laws.” But they were unable to pull the trigger and so they merely sent the case back down to a lower court while recommending stricter scrutiny.

Will the Five live long enough to have another chance to get their courage up? An actuary could calculate the odds. (Scalia is 77, Kennedy 76, Thomas 65, Alito 63, and Roberts 58.) I suspect the chances aren’t that high.

Few have mentioned that the affirmative-action non-decision interacts deleteriously with the Schumer-Rubio bill that would boost immigration. The great majority of amnestied illegal aliens and new immigrants brought in under the bill, plus their descendants unto the seventh generation, would be eligible for racial or ethnic privileges.

These benefits are a zero-sum game that, mathematically, have to come out of the hides of the legally unprivileged such as non-Hispanic whites. As the number of Hispanic beneficiaries rises, the burden on non-Hispanics also rises.

It’s bizarre that immigrant groups—who chose to come to America, warts and all—are recipients of affirmative action. Indeed, it’s so inexplicable that virtually nobody attempts to explicate it. Even more strangely, opponents of ethnic preferences have largely failed to attack this indefensible salient. (Likewise, the quotas angle goes almost unmentioned in the immigration “debate” such as it is.)

“If the government stops counting by ethnicity, then ethnic preferences immediately start to fall apart.”

Instead, everybody wants to argue over whether or not African Americans should benefit from quotas and disparate-impact lawsuits as compensation for slavery. I’ve been following these debates for 40 years, but they don’t seem to make much progress, just as the performance gap between whites and other races hasn’t changed much over those four decades.

But then, the most popular clashes tend to be the least resolvable. Baseball’s All-Star Game has been going on since 1933, for instance, and you might think that by now they’d have figured out whether the American or National League is better. But they keep playing the damn thing. You might almost imagine that the All-Star Game isn’t a serious quest for a permanent solution, that it’s actually distracting entertainment intended to perpetuate itself. The last 35 years of the Supreme Court arguing over quotas for blacks has been similarly diverting and unserious. It’s a perennial hot-stove topic that occludes more relevant questions such as immigration policy.

It’s common sense that if you don’t like racial preferences, then don’t make the problem worse by letting more people into the country who qualify for them. But common sense is suspect nowadays.

We live in an era when rational thought is checkmated by the phrase “All we have to do is.…” If you point out, as Jason Richwine did, that on average, the children and grandchildren of illegal immigrants don’t do well enough in school to get jobs that pay enough to shoulder much of the tax burden, it’s considered a crushing rejoinder to say, “All we have to do is fix the schools.”

Back in the last major Supreme Court decision on collegiate affirmative action in 2003, Sandra Day O’Connor airily opined that she figured all this unpleasantness over the achievement gap would be soon be gone:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

After all, George W. Bush and Ted Kennedy had just gotten together to outlaw the achievement gap. Their No Child Left Behind Act mandated that by eleven months from today, all races had to perform with equal proficiency on school achievement tests. Mission accomplished!

Well, here we are 40 percent of the way through O’Connor’s quarter of a century and it turned out that the most effective idea anybody came up with for closing the gap was cheating.

Similarly, on the rare occasions when anybody points out that increasing immigration worsens the burdens on unprivileged white Americans, the response is: “All we have to do is end affirmative action!”

Well, the Supreme Court has had plenty of opportunities, going back to the Bakke case of 1978. As readers of a certain age might recall, in Bakke the Supremes outlawed “racial quotas” but approved “racial goals.” Not surprisingly, nothing changed other than semantics.

Supposedly clever alternatives to quotas have often proved even worse. For example, to get more black and Hispanic firemen, the city of Chicago lowered the passing score on the fire department’s hiring exam to the fifth percentile among white test-takers. Then, it just picks randomly among test-passers. I don’t live in Chicago anymore, but that’s a frightening way to hire the guys who are supposed to save your life.

Colleges, of course, are never going to admit students at random. The Fisher case decided so limply by the Supreme Court this week emanates from Texas, where George W. Bush (funny how his name keeps coming up) tried to get around a now overturned Seventh Circuit judicial ban on racial quotas by imposing his own “non-racial” gimmickry on University of Texas admissions. Every student in the top ten percent of his or her high-school class would be eligible.

Not surprisingly, this brought in many students from the worst high schools in Texas and excluded the Barack Obama-type upper-middle-class blacks. The black students, especially black males, who thrive at a competitive college tend to be those whose parents expensively sheltered them from ghetto culture. But they seldom can come close to the top of the class in upscale high schools. For example, the president got only fair-to-middling grades at the Punahou School, where the average IQ of students according to a 1966 Joan Didion essay was 125.

Nice white parents might talk about how much they value diversity, but they are talking about Obama-like diversity. They don’t want their children stuck in a university full of inner-city blacks (scary) and rural Mexicans (boring). So UT added an explicitly race-based program on top of Bush’s Top Ten rule in pursuit of the much lusted-after Obama-like upper-middle-class non-Asian minorities. It’s often suggested that colleges could still find a way to admit NAM students using “race-neutral” techniques, but the reality is that the numbers have been studied for decades and it can’t be done.

The more cunning colleges have figured out that the solution to their “black lack” is to give affirmative action to “African Americans” who aren’t very black and/or aren’t very American. (Barack Obama is the very model of the modern affirmative-action admittee.) In 2004, black Harvard professors Henry Louis Gates and Lani Guinier estimated that only one-third of black Harvard undergraduates were (like Michelle Obama) descended from American slaves through all four grandparents.

The bottom line is that America is highly unlikely to get rid of racial preferences for African-Americans. Blacks aren’t closing The Gap and white Americans aren’t going to stop feeling sentimental and optimistic about their troubled but charismatic fellow citizens. (The same is probably true of American Indians, too, although their natural taciturnity means whites have largely lost interest in them.)

Blacks have sacred status in the 21st-century American mythos and the Supreme Court is not going to do much to take away their special privileges. What we need to focus upon is taking away legal privileges from groups that are currently conniving to acquire similarly sacred status, such as the rapidly growing number of Hispanics.

The best solution therefore would be to abolish all racial and ethnic preferences except for the descendants of American slaves and for registered members of American Indian tribes (i.e., those who are genuinely Indian enough to get a cut of a tribe’s annual casino rake-off). Slaves and Indians are the two main historical victims of America, so let their descendants have their privileges. But nobody else should get any.

There’s a simple bureaucratic method for accomplishing most of this reform. Merely have the Office of Management and Budget abolish the category of “ethnicity.” At present, only Hispanics get counted as an ethnicity, and everybody else is lumped into “non-Hispanic.” If the government stops counting by ethnicity, then ethnic preferences immediately start to fall apart. There are no disparate-impact lawsuits over religious bias, for instance, because the Census Bureau decided in 1956 to never count people by religion.

In the meantime, we could try not making the problem worse by not increasing immigration.

 

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