Anticipating Justice Thomas

In

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

environments.

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

conflicts.

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

difficulties.

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

preference”.

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

action camp?

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

policy.

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

it?

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

ENFORCED here?

Also rare is the pro-affirmative action position that is vigilant to the

racist vectors that intertwine all our lives and

languages.

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