reply to my long complaint of Jan. 11, one of our nation’s most wonderful philosophers sent me an
advance copy of his forthcoming article on affirmative action. He argues that Justice Thomas presented
the better argument in the Supreme Court’s Grutter case, although the argument by Justice O’Connor
was adopted as the majority opinion. My most delightful colleague, it seems, would favor a reversal of
the affirmative action trend in constitutional law.
[Read the rest below or at “Forums”/
“Philosophy of Affirmative Action”/”racial preferences?”] [Citation: forthcoming: The University
of Cincinnati Law Review v. 27 no. 3 (2004). 21 November 20003
Equality and the Mantra of Diversity*
Laurence Thomas SYRACUSE UNIVERSITY]
The argument against affirmative action deserves
serious consideration, if only because the Supreme Court votes have been so divided in the key cases.
In the case of Grutter, the vote was 5/4, and my esteemed colleague is helpful when he challenges us to
take a closer look at what Thomas would say.
Before I continue the philosophical
argument below, I would like to not forget that the O’Connor opinion is definitive as constitutional
law of the land. This places the burden of proof on the shoulders of makers of public policy to account
for any decisions that would seem to run patently counter to what is in fact existing law. Even if you
agree strongly with Thomas philosophically, the law of the land at this point compels attention to the
arguments stated by O’Connor.
Having said that, I find that consideration of anti-
affirmative action arguments are often quite helpful in uncovering the role that racism may play in the
promulgation of affirmative action policy. In fact it remains one of the deep flaws of affirmative
action that it is condemned to be an anti-racist policy that is only required in racist
Hence the logics and languages of affirmative action tend to participate
in the wider patterns of logic and language that are to be found in a racist environment. This is a
feature of affirmative action not often reflected upon during polarized policy
Affirmative action, like every other crucial liberation in civil rights,
uncovers our miredness. So we have to take care that our arguments for affirmative action do not rely
on racist assumptions and attitudes. The “DIversity Mantra” as Laurence Thomas points out, is
fraught with racist pitfalls.
The very term “preferences” for instance has become
sordid for its racist connotations. To oppose “racial preferences” therefore is very likely to oppose
racist justifications for affirmative action. Or to put it another way, defining one’s objection to
affirmative action as being opposed to “racial preferences” is already to load the logic of the
argument in a way that will make a racists out of the opposition.
So please don’t
accuse me of favoring “racial preferences.” To me that term implicates a racist defense of
affirmative action, and I would rather not be your straw man today.
Why do I refuse to
define affirmative action as a system of “racial preferences”? Let me begin with the ordinary usage
of the term preferences. Preferences go very nicely with the subjunctive mood; they are things we would
rather like to have, and we feel ourselves most free when our preferences present few
To have a “racial preference” therefore, is to put oneself in a wishful
mood about what would be possible to choose. And there are problems when we start out this way in our
thinking about affirmative action.
Indeed affirmative action is a preference, but it is
a “policy preference” and the policy it prefers does not need a sordid concept of “racial
I sometimes wonder if journalists reflect on the loaded nature of the term
“racial preferences” when they take it up as their own “objective” term for the issue at stake. Do
they realize that they are abetting a logic most likely to make racists out of the pro-affirmative
Affirmative action was born as a civil rights policy, not as a “racial
preference.” Or if it was a preference, it was a preference for a particular form of
I know this sounds a little loopy right now, but please bear with me. I so hope
that you sometimes think of my loopy sentences as Hegelian.
The policy of affirmative
action as I understand and defend it, is a policy that assesses broad patterns of institutional
behavior in order to set goals for institutional reform. It is a policy born of a need to enforce civil
rights. State authorities are trying to enforce civil rights at various institutions. How do they do
The policy of affirmative action would have never arisen as we know it had it not
been born as an organic mechanism for the promulgation and enforcement of civil rights. That is why I
speak about affirmative action in terms of civil rights, and why I think other forms of defense tend to
lose sight of the issues at the heart of the policy.
If one wants to use the language of
“racial preferences” in defense of affirmative action, one ought to try to formulate how a “racial
preference” comes to have positive moral value from the point of view of a civil rights struggle. If
the concept of “preferences” is not thoroughly contextualized within a situation of “struggle” then
surely a racist model will be forthcoming. While it may be possible to work your way into a morally
laudable concept of “racil preference” when considered from a civil rights point of view, that would
be a truly loopy path.
But what if we only take up the question of affirmative action in
environments where civil rights struggles are alive and useful?
A philosopher is always
entitled to prefer an opening question. In the discussion of affirmative action, then, let this be my
opening question to you. In your opinion are civil rights struggles today live and useful?
Which civil rights struggles count for you? And why?
The case of
affirmative action in Texas for instance is a case where causality is pretty well documented. Because
there was civil rights ENFORCEMENT there was affirmative action. Without affirmative action, it is
difficult to see what form that ENFORCEMENT of civil rights would take.
So, to be a
little loopy again, affirmative action is a preference that arises out of needs that are developed in
the practical realities of civil rights enforcement. How is institutional change to be ENFORCED?
Answer this last question without pointing to affirmative action, and we will then have
an alternative policy available to our prefence. But I don’t see how the problem of civil rights
ENFORCEMENT has produced a better preference than affirmative action.
And this is why
the Texas A&M case is so crucial. If Texas A&M refuses to employ the constitutional policy of
affirmative action, how can civil rights in admissions be ENFORCED.
Well, I look forward
to my colleague’s article in print. I recommend reading it, because it does help us understand how it
is possible to defend affirmative action in racist ways. Nevertheless, I think that any serious call to
abolish affirmative action has to present some clue as to how the question of civil rights ENFORCEMENT
is to be handled. This, of course, is rarely done.
I have a colleague for instance who
would rather not work in the South today. How do I assure such a colleague that civil rights are
Also rare is the pro-affirmative action position that is vigilant to the
racist vectors that intertwine all our lives and