Conservatives and Class-Based Affirmative Action

I am always skeptical when conservative commentators (like Stuart Taylor and Ross Douthat) express their enthusiasm for class-based affirmative action as a replacement for racial preferences.

It’s not that I question their sincerity; they may really think that class-based affirmative action would be a good thing. But I can’t help but wonder, and doubt, whether that position is consistent with their reasons for opposing racial preferences.

After all, class-based affirmative action would punish some and lift up others based on personal qualities beyond their control, just like regular old affirmative action. It would lead away from “merit”-based evaluations, like SAT scores and written firefighting exams, which conservatives have tended to exalt as fair, valid, and total measures of worth. It would rely on making assumptions about individuals based on the group one assigns them to — assumptions like: “Bill, whose family makes $30,000 a year, must have overcome more hardship and thereby demonstrated more ‘merit’ than Fred, whose family makes $60,000 a year.” Such an assumption seems just as crude and potentially invalid as one in which the students are separated by race instead of class. Finally, mightn’t class-based affirmative action “congratulate its practitioners on their virtue, condescend to its beneficiaries, and corrode the [class] attitudes of its victims,” to borrow from Douthat?

Again, I know that all Douthat and Taylor have to say is “But I really do believe in class-based affirmative action,” and we’ll have to take them at their word. But this isn’t just about them: I am skeptical that the conservative movement, which for thirty years has been making claims like those sketched above, is suddenly going to embrace a policy that, at its core, accepts all of their opponents’ premises and violates all of their stated principles. Unless, of course, their “principles” aren’t really principles at all, but merely dressed-up anti-minority sentiment, in which case their call for class-based affirmative action begins to look like a ploy to take from blacks and give to whites. But Douthat and Taylor are thoughtful guys, so I’m sure that’s not their motivation. It seems that their position hinges on the idea that the poor, as a class, face greater obstacles than do black people, as a class. But I don’t see how you decide that treating people as members of categories, rather than as individuals, is suddenly a good thing when the categories are class-based rather than racial. Those are different kinds of categories, of course, but are they different in a morally relevant way?

The Evil Assumption Underlying Ricci

Drew Westen, writing for The New Republic,  is the first commentator I have seen who has hit on a key assumption made by the five-man Ricci majority: the belief “that in a racially diverse city with a racially diverse fire department, it is perfectly plausible that the best candidates for leadership are all white.”

This might seem an unfair characterization of the conservatives’ position. How could a reasonable person believe such a thing, especially in an era when our president, the most important leader in the country, is a black man?  Surely the majority acknowledged that New Haven’s written and oral exam was flawed, but argued that the city had to live with the test it chose, because it had created an expectation that the test results would be used.

Well, the majority did make that argument, although, as Justice Ginsburg noted, it’s a flawed one: “The legitimacy of an employee’s expectation depends on the legitimacy of the selection method…. Title VII surely does not compel the employer to hire or promote based on [a flawed test].”  In the second paragraph of her opinion, she noted that nobody has “a vested right to promotion.”

Furthermore, the majority opinion does in fact rely on the pretension that New Haven’s exam was — I hesitate to say perfect — without major flaws. That assessment, unavoidably, rests on the assumption Westen identifies: that an unflawed test could produce such racially lopsided results, and therefore that white men must simply be better candidates for fire-department leadership positions, as a class, not as individuals, than black men.

Thus Justice Kennedy’s statement that New Haven “rejected the test results solely because the higher scoring candidates were white” (emphasis added).  Justice Alito adds the insulting insinuation that the test results were thrown out to please some two-bit race-mongering black preacher. The possibility that the test results might be invalid, might be the result of a terrible method of evaluation, is not taken the least bit seriously.

Though the legal ruling may not do so, the majority’s assumptions and reasoning absolutely tear the heart out of the idea of disparate impact: no longer should government agencies or private businesses be suspicious of their evaluations if they produce results that defy logic, defy the assumption that blacks and whites are equal. Instead, they should just say to themselves, perhaps blacks and whites aren’t equal after all; maybe the white guys are just going to be better firefighters, or policemen, or middle managers, or whatever.

Killing such a pernicious line of reasoning is worth the price of upsetting the white firefighters’ “legitimate expectations.”