By John S. Rosenberg
Richard Kahlenberg of the Century Foundation is well known for his relentless, articulate, well-researched arguments that affirmative action should be based on class, not race. My reaction to these arguments is usually rather tepid. I find Kahlenberg's arguments compelling only insofar as he also criticizes race-based preferences, and his criticism of them usually doesn't go very far. His objection to distributing burdens and benefits based on race is typically understated, if stated at all, limited to criticizing race preferences because they help some who don't need it (well off minorities) and don't help many who do (poor whites and Asians). If he's ever argued that helping some individuals and hurting others because of their race is wrong, that courts should strike down race-based preferences as violations of both the Constitution and civil rights laws, I don't recall it.
It is neither surprising nor objectionable that Kahlenberg opposes legacy preferences, as in fact do most opponents of racial preference. For what it's worth, I don't care about them very much one way or the other, although as I have argued over and over and over I do strenuously object to the common refrain that it's hypocritical (or worse, racist) to oppose preferences based on race and not get equally agitated about preferences based on athletic ability or where an applicant's parents went to college. I pointed out, here, two of the fallacies on which that ubiquitous argument depends:
1. The Merit Fallacy
I'm sorely tempted to call this one The Meretricious Fallacy (Meretricious: "tawrdrily and falsely attractive"; "superficially significant" -- Merriam-Webster Collegiate Online). Anyway, this is an argument that no one who accepts the legitimacy of criteria based on anything other than merit can make a principled criticism of racial preferences. It is a fallacy because it wrongly assumes that the only criticism of racial preferences is that they offend the merit principle. That is not true. They also offend, and more fundamentally, the principle that no person should be rewarded or punished based on race or religion....
2. The Fallacy of Fungible Discriminations
This is the argument that all discrimination is alike; if you can discriminate for one reason, you can discriminate for any reason. Thus if it's acceptable to give preferences based on athletic or musical ability or the alumni status of parents, it's also legitimate to give preferences based on race or religion. Preferences, in short, are preferences; if one is O.K., all are O.K.
What I do find both surprising and objectionable, and even odd, however, is Kahlenberg's argument in a recent Chronicle of Higher Education that legacy preferences are (or should be) illegal, even at private universities. He offers three reasons:
1. Title VI of the 1964 Civil Rights Act, which "limits the discretion of institutions that receive federal funding (including virtually all private universities) to discriminate on such bases as race or national origin. That provision bars discrimination against minority students, and it also has places limits on what both public and private universities can do to promote racial and ethnic affirmative action."
2. Tax deductions to institutions that do not "serve the public interest" can be successfully challenged. Insofar as legacy preferences are justified to increase alumni giving, those donations should (and presumably can) be barred because they "enrich the giver."
3. The Civil Rights Act of 1966, which "bars discrimination based on ancestry."
"All in all," Kahlenberg concludes,
private institutions are unlikely to be able to hide behind their nonpublic status in the event that legacy preferences are challenged in the courts. Academic-freedom rights are not unlimited. Legacy-related donations may not be tax deductible. And under the provisions of the 1866 statute, legacy preferences which are based on "the lineage of a family" are unlikely to survive.
Standing alone, not one of these three ostensible reasons for the illegality of legacy preferences is persuasive; taken all together they add up to less than nothing.
1. Title VI
First, it's worth noting that Kahlenberg badly mischaracterizes Title VI-- not only the original Title VI as written by Congress and signed by the president but even the hollow shell of Title VI that remains after its "construal," i.e., rewriting, by the courts. "That provision," Kahlenberg mistakenly claims, "bars discrimination against minority students," but in fact it bars discrimination on the basis of race not just against minority students but against anyone of any race at institutions receiving federal funds. It says "No person in the United States," not no minority person, "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." [Emphasis added]
Concurring in part and dissenting in part in Bakke, Justice Stevens persuasively argued that Title VI alone was sufficient to invalidate the University of California's affirmative action program, since it enacted "a broad prohibition against the exclusion of any individual from federally funded program 'on the ground of race.'" [Emphasis in original] Unfortunately he didn't persuade Justice Powell, whose controlling opinion held that Title VI, despite its colorblind language and legislative history, proscribed only what the equal protection clause of the 14th Amendment proscribed.
Since Powell's opinion is known primarily for letting the camel's nose of racial preferences under the tent, with the unfortunate result of allowing thundering herds of racial preferences to destroy the tent over the ensuing decades, it is often forgotten, first, that Bakke actually won his case and, second, that Powell was also unequivocal that "equal protection" protected all races equally, not just minorities. "Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white 'majority,'" he wrote, "the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude." Rejecting the "two-class" theory of the Fourteenth Amendment out of hand, Powell concluded that "[i]t is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others."
Nevertheless, we all know that despite the ringing affirmations of the colorblind protection offered by Title VI, courts have turned a blind eye toward the racial preferences that define contemporary affirmative action programs. Given this failure of the courts to protect individuals from unequal treatment based on their race by relying on a statutory provision whose clear language and purpose was to prohibit racial discrimination, it is fanciful for Kahlenberg to think that courts would lean on that provision to interfere with preferences to applicants based on the alumni status of their parents. Title VI, in short, has nothing whatsoever to say about legacy preferences.
2. The IRS
The notion that the IRS can move in and do the dirty work of undermining legacy preferences by removing the deductibility of contributions to institutions using them is even more fanciful. It is simply not the case that most donors to universities are personally "enriched" when those institutions give preferential treatment to the sons and daughters of other alumni.
Kahlenberg might have done better here by citing the Bob Jones case, which held that that tax exemptions can be denied to educational institutions whose practices the IRS regards as "against public policy" and hence not charitable, although giving over such power to the IRS should make even liberals nervous. There was some talk, for example, of using the Bob Jones rationale to take away the tax exempt status of universities that bar access to military recruiters. And writing in the New York Times, as I discussed here, Peter Steinfels quoted legal scholars who worried that Bob Jones might cause churches that opposed same sex marriage to lose their tax exemptions. Those same scholars (or others) might also reasonably worry that a conservative-dominated IRS might one day regard support for same sex marriage or hospitals that perform abortions as "against public policy." At present those fears may seem far-fetched, but not, I think, more far-fetched than calling upon the IRS to deny tax exempt status to institutions employing legacy preferences.
3. The 1866 Civil Rights Act
Finally, Kahlenberg's argument that legacy preferences may be barred by the Civil Rights Act of 1866 because they are based on "ancestry" may be the most fanciful of all. The text of that statute, by the way, does not even contain the word "ancestry," but, given Kahlenberg's mischaracterization of Title VI, it is worth emphasizing that its text specifically emphasized that it offered "protection to all persons in their constitutional rights of equality before the law, without distinction of race or color." [Emphasis added]
The 1866 Civil Rights Act was the immediate precursor to the Fourteenth Amendment, whose legislative history was reviewed thoroughly when the Supreme Court was searching for a rationale to invalidate segregated schools in the Brown cases. Original intent didn't work. As described by Prof. Michael Klarman, Frankfurter's law clerk, Alexander Bickel,
spent a summer reading the legislative history of the Fourteenth Amendment, and he reported to Frankfurter that "it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting."
And yet Kahlenberg argues in effect that courts should rely on one word that is not in the text written by drafters who had no intention even to end segregation to curtail the academic freedom of universities to encourage alumni ties (financial and other) by considering the legacy status of applicants. In doing so he repeats what is becoming an increasingly popular refrain. In "A Hereditary Perk the Founding Fathers Failed to Anticipate," for example, Adam Liptak asked several years ago in the New York Times regarding legacy preferences at public universities, "Why in the world should the government be allowed to discriminate based on heredity?"
"A very good question," indeed, as I commented at the time, "but noteworthy here primarily because Liptak is obviously oblivious to the fact that 'diversity' admissions -- choosing some and rejecting others because of their race -- is itself 'to discriminate based on heredity.'
Since Kahlenberg clearly can't believe that the authors of the 1866 Civil Rights Act intended to eliminate legacy preferences, he must believe that the plain meaning of its text requires that result. (See my "Original Intent And Original Meaning..." for a discussion of the nature and significance of this distinction.) Anyone who takes that approach, however, would have a hard time avoiding what Kahlenberg generally has avoided -- a forthright conclusion that the meaning of the Fourteenth Amendment, especially when reinforced by the clear text of the 1964 Civil Rights Act, requires official racial neutrality.
Most liberals actually go overboard in the other direction. In order to justify racial preferences today, they rely on a narrow, conventional version of original intent that leads them to conclude that Justice John Marshall Harlan was wrong to assert in his Plessy dissent that "Our constitution is color-blind." Indeed, one of the oddest, saddest things about contemporary liberalism is the degree to which it stands on the shoulders, and repeats the arguments, of dead white racists. In the fight over the form the 14th Amendment would take, the Radical Republicans wanted a clear requirement of colorblindness, but they were defeated by the "moderates' who wanted to protect the ability of states to engage in discrimination, such as segregating schools, that they thought reasonable. How ironic that the heirs of those dead moderates are today's liberals, who defend Plessy in order to justify preferences.
Since I hold no brief for legacy preferences, let me propose a grand compromise: I will happily support the view that the 1866 Civil Rights Act and its Constitutional cousin, the Fourteenth Amendment, should be interpreted to prohibit preferences based on legacy status if those who oppose legacy preferences will agree to oppose all preferences based on race.
John Rosenberg is a lapsed historian blogging at Discriminations.
Addendum, Nov. 23
I noted above that in his prolific arguments in favor of class-based affirmative action Richard Kahlenberg mutes any objections he may harbor to distributing benefits and burdens based on race. In two new pieces, both published on Nov. 21, "What Obama Should Do About Affirmative Action" in the Chronicle of Higher Education and a review of a new book by Desmond S. King and Rogers M. Smith in The New Republic, he continues to avoid forthrightly confronting race preferences.
His advice to Obama, in effect, is to follow in his own footsteps. Regarding Fisher v. University of Texas, which the Supreme Court is now considering whether to review, Kahlenberg writes in The Chronicle:
The Roberts court is likely to curtail racial preferences no matter what Obama does, so why not avoid the political hit associated with a full-throated defense of racial preferences and instead begin to make the case for a new kind of affirmative action that can be shaped so as to continue to promote both economic and racial justice?
Obama, he further suggests, "could further burnish his populist credentials [do those credentials really need burnishing?] by going on the attack against legacy preferences," asking "Why ... is there so much focus on racial preferences and nothing being done about affirmative action for the rich?" It will no doubt come as a surprise to many legacies and their parents that they are "rich."
Kahlenberg himself is a master of avoiding "a full-throated defense," or criticism of racial preferences. About as far as he goes is a cautious assertion in his New Republic review that "explicit preferences based on race are problematic" -- not because they are morally or legally repugnant but because so many whites oppose them, because "as Obama pointed out in his famous campaign speech on race, many whites 'don't feel that they have been particularly privileged by their race,' and feel an anger toward preference programs, an emotion that cannot be dismissed as 'misguided or even racist.'"
Kahlenberg's only criticism of King's and Smith's "otherwise fine book" is that the authors "fail to recognize that after moving from segregation to colorblind policies to race conscious programs, change is in the air again" in the form of growing opposition to race preferences.
"Too bad about those pesky Americans," I wrote in a much less kind analysis of an op-ed by King and Smith in the New York Times summarizing their argument, "with their unfortunate devotion to the quaint notion that a defining quality of America is (or at least was) the promise that each and every individual would be judged 'without regard' to race, creed, color, or national origin."
John S. Rosenberg is a lapsed historian blogging at Discriminations.