In response to:

Justifying Diversity from the December 6, 2018 issue

To the Editors:

A rule against racial discrimination might prevent such discrimination from recurring, but it will not eradicate and may even perpetuate the effects of the discrimination that had already occurred, sometimes over generations, or as in the case of blacks, for centuries. Writing in the December 6, 2018, issue of The New York Review, Noah Feldman defends race-based affirmative action as a means of avoiding or lessening the effects of a history of racial discrimination, but he takes a far too narrow, mostly individualistic conception of what those effects might be.

Acknowledging the nation’s long history of racial discrimination, Feldman urges university admissions officers to focus on the “ongoing effects on current applicants” of such historical practices. He charges admissions officers with the near-impossible task of determining, on a case-by-case basis, whether “intergenerational discrimination” has shaped an applicant’s experience and limited his or her opportunities and if so, to give the applicant in question an indeterminate boost—the plus of affirmative action.

Feldman defends his approach and distinguishes it from the one advocated by Marshall and Brennan and their followers on the ground that his approach is forward, not backward, looking. On this issue, however, he is mistaken. The approach to affirmative action favored by Marshall and Brennan is forward looking, it too is concerned with the present effects of past discrimination, but it concentrates on the effects that past discrimination has had, not on the fate of individual applicants, but rather on social structure—the creation and perpetuation of an underclass that is defined in racial terms. From this perspective, race-based affirmative action should be seen as a strategy for eradicating the caste-like social formation that has disfigured American society from the very beginning.

Increasing the number of blacks who are admitted to, and graduated from, elite universities such as Harvard will improve the social standing of all blacks. It will reveal to all the world the capacity of the members of this long-stigmatized group to succeed in the highest academic circles and at the same time endow them with all the benefits and privileges usually associated with a Harvard degree. The assumption is that, in time, the social standing of blacks as a group will improve, and that it will be impossible to conceive of them as pariahs.

Race-based affirmative action arose in the late 1960s, first in the building trades and then in the universities, in response to the claims of justice pressed by blacks. Although the circumstances surrounding the development of affirmative action reflect the special urgency of the claims for justice of blacks, the historical roots of this practice does not mean that administrators and courts should turn their backs on the claims of justice now advanced on behalf of other disadvantaged groups seeking greater access to jobs or education. In fact, in defending race-based affirmative action in elite universities, Feldman always couples the claim of Latinos with those of blacks. Nor should we allow the prospect of other groups seeking remedies for the injustices they have suffered to bar the claims of blacks for the justice they seek. There can never be too much justice.

Commenting on the lawsuit against Harvard that has captured the attention of the nation, Feldman is doubtful that Harvard’s affirmative-action program is the reason why more Asian-Americans had not been admitted to the university. He also expressed a doubt that the university had discriminated against Asian-Americans, but is clear that if it can be shown that Asian-Americans were, in fact, subject to admissions discrimination based on stereotypes and if an appropriate remedy resulted in an increase in the number of Asian-Americans admitted, the burden of that remedy should fall on whites, arguably cutting back on the preferences given to the children of alumni or faculty. “It should not,” Feldman wisely concludes, “reduce the numbers of African-Americans and Latinos admitted.”

Owen Fiss
Yale Law School
New Haven, Connecticut

Noah Feldman replies:

My revered teacher, mentor, and friend, Owen Fiss, has long defended a structural conception of affirmative action, according to which remediation aims to repair the racial caste-subordination of slavery and segregation. Fiss served as a law clerk to Justice Thurgood Marshall and Justice William Brennan, and has developed a sophisticated theoretical defense of their constitutional vision.

Professor Fiss faults me for committing the individualist heresy of focusing on individual rather than collective effects of affirmative action. The individualist conception of affirmative action is especially dangerous because it opened the door to Justice Antonin Scalia’s rejection of affirmative action as a violation of the due process rights of whites individually “harmed” by the practice.

Professor Fiss is the consummate hedgehog, and I admire his singlemindedness. Yet his collective view of affirmative action faces two serious difficulties.

The first is that the remedial theory of affirmative action has effectively been overruled by the Supreme Court. Although Professor Fiss insists that remedial affirmative action is actually forward-looking (because it seeks a remedy for the future), the Court has long limited remedial affirmative action to situations where it can be shown definitively that a specific institution engaged in past discrimination. This approach thwarts the structural effects of affirmative action because it treats remediation as backward-looking in the sense of repairing a concrete harm. Once the harm is sufficiently past, it becomes very difficult to justify a continuing remedy.

Professor Fiss of course holds that Justice Scalia and the other judicial conservatives got this wrong. But there is no prospect of a return to his conception in any plausible real-world scenario. In contrast, the individual conception of affirmative action in college admissions remains alive, if hanging on by a thread.

The second problem with Professor Fiss’s structural argument is that, after decades of experience with affirmative action, we cannot simply assume, as he still does, that “increasing the number of blacks who are admitted to, and graduated from, elite universities such as Harvard will improve the social standing of all blacks.”

We have had an African-American president (who was president of the law review at Harvard Law School), yet it is not clear that Barack Obama’s presidency had overall positive effects on African-American social standing—witness the shootings that actuated Black Lives Matter and the reactionary election of Donald Trump. More broadly, the emergence of a substantial African-American elite in business, law, finance, medicine, and beyond, undoubtedly a good in itself, has not had a transformative effect on the economic and social well-being of poorer African-Americans.

From this it follows that we need a conception of affirmative action that recognizes the reality of ongoing racial-structural discrimination while acknowledging that the benefits of affirmative action accrue to specific, real-world people—not necessarily to the members of the race as a whole. Those beneficiaries deserve to be treated as individuals, not as stand-ins whose admission and graduation are intended to advance racial justice in the abstract.