Bakke is arguably the reason discussions about racial preferences are so fraught and oftentimes so confused. Or, as Columbia University linguistics professor John McWhorter says, the discussions are "coded." We talk about "plus factors" when we mean lowering the qualifying standards for black and Latino students; we talk about "diversity" when we're really trying to right past and present wrongs.
Bakke was a kludge. The Constitution forbids discriminating by race, even in a good cause, but stark racial gaps were hard to close without it. So we got a loophole that tacitly permitted semi-quotas without officially endorsing them. Conservatives complained about the hypocrisy, but the alternative, barring institutions from rectifying the effects of past discrimination, would have been morally questionable and politically disastrous.
But it's left us with what Harvard Law professor Jeannie Suk Gersen calls an "analytic confusion." Affirmative action, she says, "has to do with groups that have been wronged and held back, and that we're going to try to fight against it by doing affirmative action. You can have that conversation without any recourse to diversity."
McWhorter is black and supports ending race-based affirmative action, replacing it with a regime focused on economic disadvantage. Gersen is Asian-American and supports affirmative action for groups that are struggling but also possibly a broader racial-balancing regime that might put Asian-American students at a disadvantage. They both are thus arguing against what might appear to be their narrow personal interest. But far more interesting is their willingness to do what America largely won't: speak frankly about the difficult trade-offs involved in allocating a limited number of slots at selective schools.
Using diversity as a code for rectifying the racial gaps of 1978 worked, if inelegantly. But Bakke was custom-built for an era when racial justice was largely a matter of black and white. Now the code is breaking down in a more diverse United States where at least some groups outperform their privileged white neighbors in educational attainment.
Thus, the analytic confusion Gersen identified. "Diversity" is closer in actual meaning to "racial balancing" than to "rectifying past injustice," but in deference to the Supreme Court, we've blurred the distinction. Now, however, we're being forced to confront the way racial balancing encourages anti-Asian discrimination. Some unblurring is in order.
Stripped of euphemism, racial balancing doesn't look good. And yet it does have some merit: Elite institutions that systematically and markedly differ from the general population create a gaping social wound that never heals. That said, pursuing racial balance zealously would mean either a politically unpalatable commitment to white underrepresentation or continued discrimination against Asian-American students. It would also mean admitting defeat in the battle for racial equality, accepting achievement gaps as permanent.
McWhorter resists that acceptance. Race-based affirmative action was justified in the immediate aftermath of segregation, he says, but today it is essentially racist to argue that the growing number of middle-class blacks are incapable of competing without preferences. Those who are still seriously disadvantaged by America's legacy of racial oppression should be helped with economically focused affirmative action, he says. Everyone else should compete on equal terms. Yet his prescription would be fraught: Gersen notes that "you're not going to get racial diversity to the extent that people who care about that would find satisfactory."
McWhorter counters that the preferences themselves "tend to preserve that lower record of achievement": "I thought I didn't have to work as hard as the kids at my Quaker school. And I didn't." This translates, he says, into a persistent suspicion that blacks in academia don't really belong there.
"One thing that's never discussed is that you don't apply for affirmative action," he says. "I'm often asked, 'Don't you benefit from it?' Yes. You can't escape it. It was an insult by the time I was about 20. I don't want the insult."
I prefer McWhorter's optimistic vision of race relations, while worrying that Gersen's may be more realistic and politically palatable. That will leave our new justice with an uneasy choice as the court steers us into an America where race is no longer a simple matter of black and white.
But whichever you prefer, and whichever he chooses, it will be much easier to navigate without a fog of euphemism clouding his view.