Strengthening Constitutional Self-Government

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Equality, Liberty and American Diversity

On Principle, v11n1

May 2003

by Lucas Morel

Recently, the Supreme Court heard oral arguments on affirmative action at the University of Michigan undergraduate and law schools. It’s been a quarter century since the Court last heard an affirmative action case involving education. But with overt racial bigotry by public institutions on the wane, proponents of affirmative action no longer defend it as a remedy for the “lingering effects” of discrimination. They now defend affirmative action as a way to promote racial diversity. In so doing, they make race such a permanent fixture in higher education that the rights of individual students become, at best, an afterthought in the admissions process.

Specifically, the pursuit of diversity has made racial “under-representation” the main problem to be solved and not the racial bigotry that inspired affirmative action in the first place. We’ve come a long way from the glory days of the Civil Rights Movement, which culminated in the 1964 Civil Rights Act and 1965 Voting Rights Act. These were to guarantee the full participation of black Americans in the social and political life of a nation that long treated them as strangers in a strange land.

Unfortunately, the desire for quick results transformed affirmative action from a policy of equal treatment under the law — and punishment for its violation — to a system mandating racial representation. Pressured by calls for “Black Power!” and white guilt for the sins of the past, government began treating citizens not as individuals with rights but as subjects to whom benefits or burdens were granted according to racial categories. This misplaced priority has masked a quota-driven admissions policy that simply accepts students according to racial percentages in society. This actually limits the opportunities for qualified students who happen to be the “wrong” minority in the eyes of the government. For example, many Asian-American students were systematically denied the opportunity to attend the best state universities in California because they were not a protected minority. And so their numbers at U.C. Berkeley and U.C.L.A. were kept artificially low to make room for “under-represented” blacks, Hispanics, and Native Americans. When California (and Texas) abolished affirmative action, Asian-American enrollment jumped far beyond their proportion of the population at large. Here is a case where the diversity imperative placed a ceiling on individual achievement while professing to promote equal opportunity.

To determine if racism still taints college admissions, should the Supreme Court look at the extent to which races are represented on campus or the degree to which individuals are treated in a fair manner? Is there a constitutional way to pursue diversity in higher education that is more than skin deep?

Let’s begin with a definition: “diversity” is another way of saying “variety.” Instead of seeking a variety of races to be represented on campuses, colleges should enroll a variety of individuals, where no particular race represents a proxy for a given viewpoint on life. This would promote a diversity of student interactions that does not violate the civil rights of Americans.

The University of Michigan, in Gratz v. Bollinger and Grutter v. Bollinger now before the Supreme Court, claims to do this by considering race as only one factor in the admissions process. But they do not believe all races are created equal, for they award points only to certain minority applicants to the undergraduate school and pursue a “critical mass” of only some racial minorities into the law school.

Michigan arranged these admissions policies to ensure that “enough” minority students were accepted to produce diversity not only across the student body but among the minorities themselves. They argued that if more than a token number of blacks enrolled, they would not feel isolated on a majority-white campus, and therefore would be comfortable enough to express their individual outlook in and out of the classroom. Both whites and blacks would see that all blacks do not think alike, which helps remove the stereotypes that have maintained the racial divide in America.

But history tells us that diversity is a mixed blessing. Diversity leads to differences of opinion, which can produce divisions in society that make their way into the political arena. Factions may arise that will try to exercise political power in a manner adverse to individual rights or the common good. As James Madison wrote in Federalist 10, “The regulation of these various and interfering interests forms the principal task of modern legislation,” which unavoidably “involves the spirit of party and faction in the necessary and ordinary operations of government.” In short, diversity is a mess to deal with politically precisely because it invites majority might to ignore minority rights in the pursuit of mere majority self-interest.

Thus, we should not seek racial diversity — at least not as an end in itself, but as the byproduct of admissions and hiring policies that treat each applicant as a unique individual that deserves full and fair consideration. We must find a way to educate and employ ourselves that is consistent with the human equality that is the basis of our common life.

Interestingly enough, true diversity derives less from the pursuit of group representation and more from the protection of individual rights. Real diversity, which represents the differences that arise from the freedom of each individual to express unique opinions, preferences, and interests, comes from the liberty that is the birthright of all human beings. If these individual rights are given equal protection, the results will be as diverse as Americans themselves.

In a self-governing society, government gains its legitimacy from the consent of the governed. It should, therefore, protect equally what we each possess equally: as the Declaration of Independence puts it, our equal rights to “life, liberty, and the pursuit of happiness.” The freedom that results will give rise to the diversity of individual expression that the academy claims it seeks.

Of course, the equal protection of individuals, and hence their diversity of expression, will ineluctably lead to diverse, that is, unequal, results. But what do the various measures of scholastic achievement, like grade point averages and test scores, reflect but the unequal or diverse achievements of a student population that comprises a diversity of upbringings, abilities, initiative, preparation, and habits? The question is not about the inequality of outcomes, but whether or not the field of competition was equal and fair. When asked what the black man wanted, Frederick Douglass consistently replied: “Give him fair play, and let him alone.” Americans black, white, and in between, should ask no more and no less of their common government.

Which means that state schools, like the University of Michigan, should not consider race when deciding which applicants to accept. Faux diversity, the goal of affirmative action in most American colleges and universities today, is driven by an identity politics that requires the social engineering of government. This restricts individual freedom and denies the equal opportunity that government owes to all those it is supposed to protect. True diversity, therefore, is not about mandating racial representation but about protecting individual expression. Guarantee each individual the right to life, liberty, and the pursuit of happiness, and you will get all the diversity you should want. Citizens of all colors should cherish their individuality enough to tell government to stop the practice of racial favoritism. To do otherwise only ensures that American government never lose sight of race in its decision-making.

Simply put, race should never be the measure of anyone’s rights. The government of all should be partial to none.

“America is woven of many strands; I would recognize them and let it so remain.” So spoke Ralph Ellison’s “invisible man” in his landmark 1952 novel of the same name. Ellison discovered the diversity of individualism many years before it was hijacked by the affirmative activists. He saw that diversity could be a strength or weakness depending on society’s recognition and treatment of each individual. As the invisible man put it, “Diversity is the word. Let man keep his many parts and you’ll have no tyrant states.” Racial minorities have suffered much as a group throughout American history. But the protection of their rights as individuals can come only by identifying themselves as American citizens. For when it comes to securing the rights of all Americans, it’s the minority of one — the individual — that is the focus of the Constitution’s protection. Only the equal protection of individual liberty can produce a diversity worthy of free human beings and society.

Lucas E. Morel is an Assistant Professor of Politics at Washington and Lee University and an Adjunct Fellow at the Ashbrook Center.

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