Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Allowability of Racial Categorizations

John Rosenberg raises some very interesting issues on his blog, noting the possible incongruity in the standard liberal and conservative positions insofar as they relate to affirmative action and racial profiling. John writes:

I’ve been struck by the inconsistency of liberals who oppose racial profiling when done by police but applaud it when done by admissions officers or employers.

John displays commendable evenhandedness, expressing similar discomfort with conservatives who advocate the polar opposite (support for racial profiling / opposition to affirmative action). In the comments section of that blog, Brendan Maher and I have argued opposite sides of the issue; he has suggested that the conservative position is coherent, I that the liberal position is.

We seem to agree (he can correct me if I’m wrong) on the basic premise: Categorizing by race is generally proscribed, but may be allowed where it is the only way to fix an important problem.

Prior Discussion

Maher suggests:

“[P]referentialists” have had some success in arguing that “diversity” is a sufficiently compelling interest to allow race-based discrimination in admissions, [but] their arguments are hollow, easily refuted and not supported by any real evidence. . . . there is no objectively quantifiable evidence that “diversity” is a compelling government interest and that discriminating AGAINST more qualified white or Asian applicants is the least restrictive means of serving that interest. In other words, race based affirmative action fails both prongs of the test.

In stark contrast, racial profiling in law enforcement, when backed by actual evidentiary “profiles” of a certain type of criminal or crime, will almost always meet the “strict scrutiny” test. . . . First, it is unlikely that . . . preventing another terrorist incident like 9/11 is not a “compelling government interest” (indeed, it can be plausibly argued that protecting the country is the MOST

compelling government interest). Thus, the first prong of the “strict scrutiny” test is easily met. The question then becomes, “Is singling out young, male Arab-looking individuals the ‘least restrictive’ method of serving the ‘compelling government interest’ of preventing additional terrorist attacks?” Absent any additional factual information, the a principled “color blind” conservative would answer “no.”

My reply was:

Affirmative action as a general proposition passes because it is the only way to remedy harm done along racial lines, caused by centuries of state-sponsored discrimination. (Not all affirmative action programs might be adequately designed for this purpose, but ones which are could pass).

Racial profiling, on the other hand, does not pass. It is use of racial categories in law enforcement, and other means could be used for the same result (better law enforcement). Adding more police, better technology, better techniques, and so on could provide the added protection from crime that racial profiling might claim to add. Since an alternative route exists, racial profiling is verboten.

Finally, the counter-reply was:

“Remedying past discrimination” is, in theory, a valid reason for using race-based affirmative action. In my opinion, however, not a single eighteen year old student who is applying for college today (i.e. who was born in, say, 1984-85) can advance that theory with a straight face. It has been illegal to discriminate on the basis of race in admissions (and in just about everything else) since the late 1960s. There is not a student alive who can claim that his or her admission to a particular university is necessary to remedy past discrimination. Nor is there a college or university that can plausibly claim that it NEEDS to discriminate NOW, to make up for its pre-1964 discrimination. . . .

With respect to racial profiling, the test is not whether there are ANY less restrictive means of achieving the compelling government interest, but whether the means chosen, set against the particular factual background at issue, are the LEAST RESTRICTIVE for achieving the government’s goal.

While it is certainly true that, in a perfect world, we would have all the police and federal agents needed to effectively combat terrorism, and all of those police and agents would have the best training, weapons and other tools available, that is simply not the case. Police and federal agents are stretched thin, and there is not enough time, money or equipment to search every passenger on a plane or every car that crosses our borders.

To which my new reply is:

First, I disagree that passage of the Civil Rights Act in 1964 and four decades of uneven enforcement since then have remedied whatever problems were caused by a century of legal slavery and a century of state-sponsored discrimination. This is not to suggest that the situation is not better than it was before, but the harm has not been cured.

Racial groups which were subject to a long period of discrimination have not been able to develop the foundation for economic success that other groups have in place, and are less able to use networks which facilitate getting an education or a job. For example, many universities have preferences in place for alumni relatives. “Check here if any of your relatives attended Columbia University.” How many minorities benefit from these programs? A smaller proportion than the general populace, because systemic discrimination was in place for so many years. This is not to say that minorities will never benefit from such programs. But for that to happen, this minority candidate must have had a parent or uncle or such who made it into the university despite the lack of alumni connection, and who then gave him that connection. This point is not that all non-minority candidates benefit from alumni preferences; they don’t (lots of people, including me, made it into Columbia with no alumni connection). But some non-minority candidates have this advantage, and no minority candidates do at first. The imbalance will correct over years and generations. In the interim, affirmative action can speed up the balancing out of this effect of prior discrimination.

The same applies to business ownership. A small percentage of non-minority candidates receive business opportunities due to family or other connections. Not all do, to be sure, but the percent is higher than it is for minority candidates. And so forth. That is, there are secondary effects of discrimination which still disadvantage minority groups, and some kinds of affirmative action can be an appropriate remedy.

(As for diversity, I have not examined in detail claims that it is either helpful or overrated. Intuitively, I would think that diversity is a good thing as opposed to neutral or bad. I’m not sure without further research whether I would consider it important enough to justify the high standard for setting up racial categorizations; however, that question is not necessary for me, since I think that affirmative action programs are appropriate as a response to remedy the harm of prior discrimination.)

Second, on racial profiling, I continue to have reservations. My reservations mostly stem from the history of discrimination, and that it was used by law enforcement to perpetuate lynchings and other serious injustices. This would, I suggest, lead to a third prong of the test. The test sometimes used by courts (well, sort of) and adverted to in discussion is:

Categorizing by race is generally proscribed, but may be allowed where it is the only way to fix an important problem

To this, I would add:

Categorizing by race is especially suspect where it involves potential use of the coercive powers of the state to deny personal freedom.

And that may be where we differ. It is arguable that racial profiling may fit the “least restrictive” test sometimes used by courts in examining racial categorizations. But where a racial categorization could lead to removal of personal freedom, a higher standard should be used. One of the great evils of slavery was to remove freedom based on racial categorizations. One of the great evils of post-slavery discrimination was the perversion of the law enforcement system into a tool to continue to remove freedom based on racial categorizations. These considerations suggest to me a higher, almost unachievable standard:

Where a racial categorization involves the government’s coercive power to remove personal freedom, it may not be used if there is ANY way the government may otherwise accomplish the result.

And under that standard, racial profiling is not allowed.

Quick Postscript: I’ve been impressed at the level of civility and reasonableness this discussion has had. Both John and Brendan have been exceptionally civil in a topic which often brings out the worst kind of ad hominem, racist, or other problematic discussion.


October 17, 2002 - Posted by | Uncategorized

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