Color Schemes

Can affirmative action be reconciled with liberal individualism?

Richard Epstein from the July 2002 issue

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Loury's confusion about the law leads to a second, more philosophical mistake: He fails to appreciate how liberal individualism bolsters the case for allowing (but never mandating) affirmative action. Liberalism, of course, relies on the color-blind principle to guarantee the equality of all individuals under the law. In 1896 Justice John M. Harlan, dissenting from the Supreme Court's tragic decision in Plessy v. Ferguson, invoked that principle to attack state-sponsored segregation. Harlan believed in freedom of association and opposed government-created castes. No doubt many whites in his time would have exercised their contractual liberties to discriminate against blacks, but many others would have worked to advance the cause Loury so fervently supports. Such individuals were often thwarted by segregationist legislation.

Nothing in the principles of classical liberalism requires individuals to pursue only their narrow atomistic interests, blind to the broader social context. The prohibition against force and fraud at the heart of a liberal order is designed to curb the dangerous appetites of the most selfish. By stressing an imperfect obligation of benevolence, classical liberalism enlists associational freedom to promote charity, good deeds, and socially responsive behavior by people with more-generous impulses. Captains of industry from John D. Rockefeller to Bill Gates got Loury's point about social context long before he made it, in both their business and charitable activities. Private affirmative action is fully consistent with the psychological underpinnings and normative requirements of liberal individualism.

It therefore should come as no surprise that the voluntary efforts of universities, corporations, and foundations put affirmative action on the map. These programs went far beyond the color-blind commands of the civil rights laws. In their 1998 book The Shape of the River, William Bowen and Derek Bok argue that such efforts did by and large achieve their goal of bringing capable black students into the social mainstream. (See "Unexplored Tributaries," February 1999, for my rejoinder.) One need not accept that argument, which has a shaky empirical foundation, to believe that private institutions should be free to do as they please in this area, within the context of their own purposes and budgets. Universities are in the business of organizing cross-subsidies. Their separate and decentralized activities will not be narrowly atomistic. Freed of external political pressures, they are far more likely to produce sensible social outcomes than any ham-handed state mandate on affirmative action.

Today's key battle is not over the robust affirmative action programs found in private universities. Rather, it relates to affirmative action in public universities, which opponents claim is barred by the Constitution's guarantee that all citizens will receive "the equal protection of the laws." In the 1995 case Adarand Contractors v. Pena, the Supreme Court stated unequivocally that equal protection requires courts to find a compelling state interest for any state or local program that discriminates on the ground of race.

Loury rightly finds it infuriating that the same uncompromising standard should apply to actions designed to rectify past wrongs as to those that perpetuate them. He is quite happy to accept race-blind policies that advance the welfare of blacks and improve the overall social situation. But he has no patience with race-blind policies supported by people who are indifferent to their racial consequences.

Whether the issue is the location of a public facility, the election of public officials, or the choice of a school curriculum, Loury concludes, "To insist on indifference to race when approaching these questions is to evidence both political stupidity and a willful disregard of the concerns of social justice."

Again, however, he muddies the waters by failing to lay this unfortunate race-blind dogmatism at the doorstep of the 1964 Civil Rights Act. Instead Loury spurns the classical individualism that offers the best chance to defeat a conservative judiciary bent on dismantling every public affirmative action program in the United States.

Equal protection does mandate that the duties of the night watchman state be discharged in a color-blind fashion. But the same strict standard need not apply when the state assumes the very different function of supplying goods and services to its citizens. In this role it acts in competition with private universities, which under liberal principles should be free to adopt affirmative action programs. The fact that these programs, both public and private, have been so widely adopted (even to excess) in the face of such strong opposition testifies that, in sharp contrast to Jim Crow, they are not the product of a corrupt or factional political system.

Rather, they are an outgrowth of a multidimensional deliberative process that has converged on the same outcome time after time. That virtually every major private corporation and private university embraces some form of affirmative action suggests that state institutions doing the same tasks should be allowed the same latitude. A bar against any form of affirmative action is a tough position to defend inside any organization, public or private. The great danger here is legislative fiat, such as California's Proposition 209, which forces all public universities to conform to Ward Connerly's monochromatic vision of human nature.

Loury should recognize that decentralized social institutions offer the greatest prospect for improving race relations. The Civil Rights Acts were important in securing the demise of Jim Crow, but those laws have long since outlived their usefulness in the regulation of private behavior in competitive markets. Now we need a return to freedom.