By John Rosenberg
When the history of the decline and fall of the regime of racial preference is written, recognition will of course be given to the power of the moral, philosophical, historical, legal, and political arguments arrayed against the repugnant notion that benefits and burdens should be distributed on the basis of race. But it seems to me that a prominent place in the story must also be reserved for the devastating, pomposity-puncturing impact of wickedly effective satire in the form of "anti-affirmative action bake sales" that spontaneously erupted on campuses around the country.
For some reason liberals --- a shorthand here for university administrators, students, faculty, and their supporters in the mainstream media and Democratic Party --- who defend as a matter of principle lowering standards for approved minorities in hiring, college admissions, etc., become sputteringly apoplectic when students, parroting and parodying affirmative action, stage satirical mock sales of cakes and cookies with higher prices for Asians and whites and lower prices for blacks and Hispanics and, sometimes, women. Requiring Asians, for example, to score 200 points higher than other minorities on the SAT strikes liberals as entirely fair and just, but a mock sale ostensibly requiring them to pay fifty cents more for a cupcake is somehow offensively discriminatory. Adding irony to insult, they don't even seem to recognize that by calling the differential pricing discriminatory they are simply confirming the point of the affirmative action protesters whose satire, as I argued on this site last April, "merely mimicked the actual practices of the admissions offices."
There have been several dozen of these spontaneous, un-coordinated bake sales on campuses over the past several years, and the controversy at Bucknell is still raging. John Stossel of Fox News held his own bake sale to focus attention on Bucknell's suppression of political speech, and has had several on air discussions of it. "This week," he wrote two weeks ago,
I held a bake sale --- a racist bake sale. I stood in midtown Manhattan shouting, "Cupcakes for sale." My price list read:
Asians -- $1.50
Whites -- $1.00
Blacks/Latinos --- 50 cents
People stared. One yelled, "What is funny to you about people who are less privileged?" A black woman said, angrily, "It's very offensive, very demeaning!" One black man accused me of poisoning the cupcakes.
I understand why people got angry. What I did was hurtful to some. My bake sale mimicked what some conservative college students did at Bucknell University. The students wanted to satirize their school's affirmative action policy, which makes it easier for blacks and Hispanics to get admitted.....
All the Bucknell students wanted was a campus discussion about that. Why not? A university is supposed to be a place for open discussion, but some topics are apparently off-limits.
At least at Bucknell, where administrators claimed the "sale" was discriminatory and closed them down. Bucknell's behavior was so atrocious, in fact, that F.I.R.E., which has been leading the fight against suppression of campus speech, moved it to the top of its list of university offenders and actually put up a billboard near Bucknell calling attention to its policies. (Disclaimer: in a former, way pre-blogging life in a former century I taught at Bucknell for a while.)
Another bake sale battle is also still being pitched at Wesleyan University, and this one is perhaps even more interesting than the others because of the deep (and I think embarrassing) participation of many faculty members. The contours of the controversy at Wesleyan, nicely summarized in this October 29 article in The Wesleyan Argus and thoroughly analyzed by Ashley Thorne of the National Association of Scholars a few days ago ("Wesleyan's Affirmative Action Reaction") and La Shawn Barber, are by now quite familiar: a few conservative students putting on a satire "because we want to have a discussion"; a liberal student "who is currently writing her senior thesis on affirmative action in France [who] said that she was shaking with anger when she came upon the bake sale during lunch"; and a university administrator --- in this case, Vice President for Institutional Partnerships and Chief Diversity Officer Sonia Manjon --- who "believes a bake sale was not the best outlet to begin the discussion," who said that some issues "are so controversial" they should be taken indoors to a forum, and who patronizingly told the conservatives that "maybe they need to do a little research first." And let's not forget the Tenured Radical, History professor Claire Potter, who sent an email to an undergraduate accusing those who sponsored the bake sale of being racist. (HatTip to Wesleyan graduate Mytheos Holt, who quoted the email on National Review Online's Phi Beta Cons.)
Actually, based on a public statement "In Support of Affirmative Action" signed by 34 Wesleyan faculty members (including several historians, whose performance here is especially disappointing), it is the Wesleyan faculty that needs to do more research.
"We write in support of affirmative action as a legal policy with a specific history," they begin. The criticism of affirmative action at Wesleyan, like all such criticism everywhere, they continue, "is part of a broad political backlash that misrepresents the intent behind and the historical development of the policy."
Alas, the "specific history" presented by these Wesleyan scholars falls on its face in its first sentence and never regains its footing. It begins:
The first federal articulation of Affirmative action came about through Presidential Executive Order 11246 in 1964, which made it the policy of the Government of the United States to provide equal opportunity in federal employment for all qualified persons, to prohibit discrimination in employment because of "race, creed, color, or national origin," and "to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency."
There are several fatal flaws here, beginning with simple factual inaccuracy. "The first federal articulation of Affirmative (sic) action" was not Executive Order 11246 in 1964. That executive order was issued in September 1965, not 1964, but more important it was the second, not the first, "federal articulation" of affirmative action. The first "federal articulation" was President Kennedy's Executive Order 10925 signed on March 6, 1961.
Perhaps factual accuracy is too pedestrian for these eminent literary theorists, philosophers, theologians, social scientists, and even historians, but they also miss, and hence fundamentally mis-state, the moral and principled core of both executive orders. True, as they say the orders did prohibit discrimination against federal employees or contractors because of race, etc., but they did far more than that, and the affirmative action they require was far different from these professors believe. More precisely, the way they prohibited discrimination --- by insisting that all applicants and employees be treated "without regard" to race, creed, color, or national origin --- is totally at odds with what affirmative action became in later years and what these professors defend.
Both Johnson's and Kennedy's executive orders insist on the "without regard" standard throughout. Here is a typical example from Kennedy's 10925 (Part III, Subpart A, Section 301, repeated in Part II, Subpart B, Sec. 202(1) and (2) of Johnson's 11246):
(1) The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin....
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, or national origin.
What part of "without regard" do these defenders of race preference not understand?
The professors' statement proceeds to cite with a number of other federal civil rights statutes, though singly and collectively they add nothing to the Wesleyan debate. Again immediately lapsing into error, for example, they ponderously assert that the purpose of Executive Order 11246
was to ameliorate nearly two centuries of exclusion of U.S. domestic racial minorities who had endured the legacies of genocide, settler colonialism, enslavement, and racial apartheid prior to the Voting Rights act of 1965....
Note well the large dog that is not barking here, and that continues not to bark as their trivialized history proceeds to cite a 1976 executive order adding sex to prohibited forms of discrimination, the age discrimination act of 1967 that describe in irrelevant detail, the Vocational Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990. Worth legislation all, but none of it relevant to Wesleyan affirmative action debate. But pay close attention to what is not mentioned even in passing: the Civil Rights Act of 1964, the seminal civil rights statute!
Considering that act, of course, might have required at least responding to the argument that the language of, say,Title VI ---
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance
--- suggests that admissions policies that set higher admissions hurdles for some applicants based on their race or ethnicity (like requiring them to pay more for their cupcakes) ssubjects them to discrimination.
The professors' history lesson, in short, is pathetic, and does not reflect well on them (though it may help explain why so many Wesleyan students were nonplussed by the bake sale, relying as it did on a vision of civil rights to which they presumably have not been exposed in class). Concluding, they accuse affirmative action critics of having "misconstrued" Wesleyan's "institutional commitments" as "a system of 'racial preference....'" Really? If Wesleyan's policy has in fact been "misconstrued," it would be a simple matter to clear up the confusion. As the first commenter on the professors' article stated, "Let the discussion begin by Wesleyan releasing the SAT scores of its students by race."
In her excellent National Association of Scholarsarticle (mentioned above), Ashley Thorne mentions Jacques Steinberg's 2003 book, The Gatekeepers: Inside The Admissions Process of a Premier College. "Steinberg," she writes,
who was permitted to follow a Wesleyan admissions officer for a year, described in detail how race could boost students' chances of being admitted. At one point he wrote, "But sometimes, to forge that balance, the standards to which a white applicant were held were eased for a nonwhite applicant."
But then perhaps Steinberg, too, "misconstrued" Wesleyan's practice of race and ethnic favoritism.
John Rosenberg is a lapsed historian blogging at Discriminations.