10626: Affirmative Action Arguments.

From The New York Times…

Rethinking Affirmative Action

By David Leonhardt

THE founding principle of affirmative action was fairness. After years of oppression, it seemed folly to judge blacks by the same measures as whites.

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race,” President Lyndon B. Johnson said in a 1965 speech that laid the groundwork for affirmative action, “and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Given this history, it was striking to watch the 80 minutes of Supreme Court oral arguments about affirmative action on Wednesday. With the courtroom overflowing, filled with people who have spent their careers fighting for or against affirmative action, only one side talked about fairness. And it was not the side defending affirmative action.

The lawyer for Abigail Fisher, a young white woman rejected by the University of Texas, argued that she had been denied equal treatment. The conservative justices, sympathetic to Ms. Fisher’s case, expressed particular concern that affluent black students were receiving preferential treatment.

Nobody on the other side — not the university’s lawyer, not the Obama administration’s, not the liberal justices — responded by talking about the obstacles that black and Latino students must overcome. The defenders of affirmative action spoke instead about the value of diversity. Without diverse college classes, they argued, students will learn less and society will lack for future leaders.

The decision to emphasize diversity over fairness is one that affirmative-action proponents made long before Wednesday, and it is a big reason they find themselves in such a vulnerable position today.

Americans value diversity. But they value fairness more. Most people oppose a college’s or employer’s rejecting an applicant who appears qualified for the sake of creating a group that demographically resembles the country.

With affirmative action boiled down to a diversity program, it finds itself in retreat. Five of the six states that have held referendums on racial preferences have banned them, including California and Florida. The Supreme Court limited the legal forms of preferences in 2003 and suggested that they had only 25 years left. Based on last week’s oral arguments, and the fact that Justice Anthony Kennedy has never voted to uphold preferences, the court may restrict them further or forbid them.

Yet supporters of affirmative action do not necessarily need to despair. They still have a path open to them, one that remains legal and popular. It involves resurrecting Johnson’s vision of an affirmative action program based on fairness, which the Rev. Dr. Martin Luther King Jr. also favored.

The crucial choice that affirmative-action proponents made long ago was to focus the program on race rather than more broadly on disadvantage.

There were some obvious reasons to do so. Americans have never been comfortable talking about class. It reeks of the social order the country rejected at its founding (Britain’s) and of the economic system the country spent decades fighting (communism). But race was an undeniably American problem, from slavery to civil rights to the discrimination that, according to voluminous social-science research, lingers.

Read the full story here.