Two kinds of arguments in favor of race-based affirmative action

[Volokh, Eugene]

        There are, it seems to me, two kinds of arguments in favor of
particular race-based affirmative action programs.

        One kind of argument explicitly relies on the notion that
discrimination in favor of nonwhites should be treated in a considerably
different manner from discrimination in favor of whites, for a variety of
reasons.  I generally don't accept these arguments -- for reasons that are
too familiar to be rehearsed here -- but I think there is a lot to be said
for them (again, for reasons that are too familiar to be repeated here).

        Another kind of argument, though, does not make such an explicit
assertion, and instead suggests that a certain kind of race-based program
just isn't really race discrimination at all.  The implication, and
sometimes even the explicit claim, is that even if one thinks that
discrimination in favor of nonwhites and discrimination in favor of whites
should be equally disfavored, this program is still OK.  It is these
arguments that I find particularly unsound.

        It was one such argument -- "alumni preferences are just as
non-merit-based as race-based affirmative action, and thus the two should be
treated the same" -- to which I was responding; I appreciate the original
poster's clarification of his point, and I now realize that he and I might
not disagree much on the underlying issue, but I did much disagree with the
post as I originally understood it.

        Likewise, I think that the program Bill Funk describes in the
paragraph I quote below is clearly racially discriminatory.  If it is
defended, it can only be defended on the grounds that race discrimination
against whites should be treated differently from race discrimination
against nonwhites -- and I would hope that any defense of the program makes
this point explicit.  In fact, I'm quite certain that we would quickly
reject any such program that gave preferences to whites, easily seeing the
race discrimination even when race is used as "just one factor."  Consider,
for instance, Palmore v. Sidoti, which is a very close analogy; consider
also many discriminatory hiring decisions, in which race is indeed used as
just one of many soft factors.

Bill Funk wrote:

        Imagine that a university states that it is setting aside 20% of its
        incoming class for non-merit admissions -- that is, admissions not
        wholly based on academic merit.  Within this 20% persons may be
admitted
        because they are athletes and will bring distinction (and dollars)
to
        the university, because they are legacies that will continue the
        tradition and culture of the university (which is viewed as a good
        thing), because they belong to ethnic, racial, or religious groups
not
        sufficiently represented on campus to diversify the university and
        diversity is viewed as a good thing because society is made up of
        diverse peoples and experience in such a community is good
preparation
        for the "real" world -- this last category definitely uses race as a
        factor in admissions.  A person who is not an athlete, not a legacy,
and
        not a member of an ethnic, racial, or religious group not
sufficiently
        represented on campus is denied admission, although she has higher
merit
        scores than many persons admitted under the 20% set aside.
        1) is this program unconstitutional?
        2) even if it is, does she have standing to raise it?




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