Racial Oppression, Reverse Discrimination, Unalienable Rights, and Equitable Resolution

Last week the Supreme Court heard the case over racial preferences in Harvard’s and the University of North Carolina’s admissions processes.  The actual case will revolve around boxes to check on application forms, and the numbers of students of what races affected by the policies.  But these do not form the point of the issue.  The arguments for racial considerations are that a “diverse” population makes for a better educational experience, that schools have the right to construct an entering class to that end, and that they do not rely on race per se as an admissions criterion.  

However genuine any of the arguments may have become, we need to remember that affirmative action, as it was called when first instituted, was originally meant as a way to counter, defuse, or compensate for racial discrimination against Blacks.  Only when we acknowledge this origin can we speak to the justice or injustice of the practice.  

The initial motive behind racial preferences for African Americans was clearly just.  Enslavement, disenfranchisement, and denial of rights to Blacks, predicated on race alone, has had a long history in this society.  Slavery and prejudice violate the principles by which the colonies constituted themselves as a nation.  As norms and practices they are legacies of the old world, but they also continued well after 1776, and justice demands correction. 

The problem, which at heart is the only problem, is that any racial preference is itself a discrimination based on race.  It thus contravenes the founding tenets even though it arises in reaction against deep and debilitating prior discrimination.  

A first point follows from this clarification.  The question of “diversity” and of institutions’ rights to construct, in this case, an entering class by their own chosen lights, is separate from the question of racial injustice.  If the universities in fact discriminate specifically to the benefit of Blacks, or any other selected group, then the “diversity” standard is morally invalid, a canard that obscures the actual issue.  If it is a genuine motive, then any question of “diversity” is a separate matter, and probably must respond in part to the mandates of the institutions and the definitions by which they guide their policies.  But those issues are far less consequential and far more tractable for this nation than the oppression of Blacks.

However the Supreme Court analyzes the case before it, in the terms of our founding creed, the moral crux of the matter is a matter of whose rights carry more weight.  This is of course a no-win choice, as any contravention of impartial practice is a violation of our core ethics.  Any person denied a place in a class due to a preference for another, whether in 1893 or 2020, suffers an injustice.  At the same time, the legacy of racial oppression remains a stain that America needs to eliminate from practice and from acceptability. 

Put this way, the issue seems as polarizing as the politics that divide the nation.  But the polarizers already control the discourse.  Frank discussion, but explicitly based on common concern for all persons’ unalienable rights, is the only way to settle on a national approach.  Otherwise the politicians invoke code terms like “diversity,” which mixes the core injustice with others and obscures the deeply seated sin of oppression of Black persons.  This dilution often helps the parties’ efforts to cobble diverse political interests together, but lumping the core injustice with other impedes frank discussion of any of them on their own merits.

Frank discussion of justice for Black persons must address two needs – the one to correct the injustice inflicted repeatedly on generations of Blacks, an essential need for America – and the one to treat all persons as individuals in their equally-endowed unalienable rights, now.  In the discussion some might say the weight of centuries of injustice against Blacks, denying persons their personal rights because of their race and denying a whole population a fair shot at progress, calls for the sacrifice of those hard-to-identify persons who whose rights would, indeed, be denied by affirmative action.  To ask for this, the proponents should first find ways somehow to place that sacrifice in communities that can “afford” it – the loss of places in schools, or jobs, should not be absorbed by aspiring working class whites, for instance.  

Some might instead dedicate extra resources to Black communities and letting “natural” progress correct old imbalances, akin to the experience of many immigrant communities.  The costs imposed on others would be more diffuse; no one would “not get a fair shake” at admission to Chapel Hill.  However, anyone favoring this path must commit to true provision and effective use of said resources.  The line has often served as a false pretense to simply avoid addressing racial injustice.  

There is always the possibility of some path, as yet unknown, which somehow corrects the legacy of injustice without violating anyone’s rights today, or at least not too much.  The motive to find that path is to keep faith with our founding all around.  Any effort will likely prove futile.  The realities of past sins and current interests are rock and hard place.  But if enough of us try together for a solution, it may allow the hard choices, between one set of rights and another, to be considered in good faith.  


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