Sotomayor got into Princeton, got her No. 1 ranking, was whisked into Yale Law School and made editor of the Yale Law Review — all because she was a Hispanic woman. And those two Ivy League institutions cheated more deserving students of what they had worked a lifetime to achieve, for reasons of race, gender or ethnicity.

This is bigotry pure and simple. To salve their consciences for past societal sins, the Ivy League is deep into discrimination again, this time with white males as victims rather than as beneficiaries.

Now whatever Pat Buchanan’s, uhh, complicated relationship with mainstream American conservatism and libertarianism, the sentiment in this statement is a pretty common one – i.e., affirmative action programs reward mediocrity, discriminate against whites, and a whole host of other evils.  Buchanan then even goes so far as to insinuate that the credentials Judge Sotomayor earned once at those schools were themselves the product of racial favoritism:

Two weeks ago, The New York Times reported that, to get up to speed on her English skills at Princeton, Sotomayor was advised to read children’s classics and study basic grammar books during her summers. How do you graduate first in your class at Princeton if your summer reading consists of “Chicken Little” and “The Troll Under the Bridge”?

There is a sentiment in these specific arguments, when made in this way, that really bugs me.  That sentiment is that Judge Sotomayor achieved not a thing because of her own talents or intelligence – not only did she get into those schools solely because of affirmative action, but once she was there she succeeded only because of racial favoritism.  Since Judge Sotomayor graduated first in her class and received all sorts of honors (e.g. editor of the Yale Law Review), this argument thus implies, intentionally or unintentionally, that not a single other minority student deserved to be at those schools or even hypothetically could deserve to be at those schools.  Otherwise, why would Judge Sotomayor, of all the other minority students, reach the top of her class? 

But there’s also some sentiments in these arguments that I encounter pretty regularly in discussions of affirmative action.  They’re sentiments that are easy to arrive at, but which just don’t hold up to close scrutiny and are part of why I’ve become less opposed to, and even downright supportive of, affirmative action programs even as I’ve gotten more passionate about my libertarianism.  Specifically, I’m referring to the notion that somehow affirmative action programs represent a form of bigotry and racism against whites and that they stand in the way of a “color-blind” society.

First, let’s be clear that we’re talking in this case about private affirmative action programs, not public ones.  So why should anyone care, unless they want to advocate that it’s perfectly acceptable for a government to force a private employer to adopt a sort of affirmative action for white people?  By this I mean that the original more or less Goldwater-esque (and definitely libertarian) argument against discrimination laws was that people should have the right to be racist douchebags.  If you really think that affirmative action programs are a form of reverse racism and that private colleges should thus be prohibited from implementing them, then you are abandoning the argument that people should have a right to be racist douchebags.  (And yes, I know that Ivy League schools get federal money…so do plenty of private businesses, though.  Regardless, see below). 

But more importantly, there’s this question – how are affirmative action programs, whether public or private, for purposes of “diversity” or for purposes of remedying some other discrimination, really worth getting upset about in the first place?  Don’t get me wrong – I’m sure there are cases where a more qualified white candidate gets rejected because of an affirmative action program that is based on a “diversity” rationale.  This after all was the basis for the claims in both Gratz and Gruttinger.  But as I’ll show, the “diversity” rationale isn’t really the underlying rationale. 

When an affirmative action program is set up as a means of remedying some other form of discrimination, then the presumption is that the only reason the average minority applicant would be less qualfied than a white applicant would be that other form of discrimination, whether past or present.  Thus, if you factor that past discrimination into the equation, the two applicants would be equally qualified.  In that situation, affirmative action is absolutely necessary to restore a meritocracy – it doesn’t stand in the way of meritocracy.  In other words, it’s an attempt to approximate what would happen in a discrimination-free environment.  This rationale strikes me as doubly relevant in the public context, since government is supposed to serve all of its people, and representat all of its people.  Allowing the legacy of past discrimination to take longer to work its way through the system strikes me as pretty insidious, and the only reasons to be concerned about such programs are if you think that other forms of discrimination need not be remedied or are unnecessary because we’ve already achieved a “color-blind” society.  Few people are willing to admit to the former reason (although there may be good arguments in support), but the latter reason winds up being pretty weak: even if we’ve achieved a “color-blind” society, then the worst that can be said about affirmative action policies is that they are unnecessary and on some rare occasions affect qualified applicants at the margins.  This is unfortunate and wrong, but it’s also not exactly something that threatens the fabric of our society either.

The supposedly bigger problem with affirmative action arises when it is justified based on a diversity rationale because other forms of discrimination have supposedly been rooted out of the system (often a debatable proposition).  But even here, the argument just doesn’t hold up on a macro-level.  Affirmative action programs are intended to ensure that people of different races are represented in a proportion that is roughly reflective of the rest of society.  So, if we assume that no particular race is inherently more qualified than another particular race – i.e., we sincerely believe we are or should be ”color-blind,” then in most instances, and particularly when we’re discussing large institutions, affirmative action programs will have exceedingly little effect.  All races are equally capable of being qualified, so therefore if there were no affirmative action program, the result would be almost exactly the same.  At worst, we have a policy that is useless but does no real harm in the aggregate (there may, again, be exceptions to this, but they’re likely to be pretty rare). 

Of course, quota systems are prohibited, so instead we wind up with race being a “plus” rather than creating something along the lines of a separate applicant pool.  Oddly, this results in a situation where the more clearly “race-neutral” result is somewhat less likely - a “plus” system actively prefers a minority over an otherwise equal candidate solely as a means of increasing diversity even though, assuming a colorblind world, such a “plus” would be unnecessary – the accepted candidates would already represent the relevant society at-large.

This leaves opponents of affirmative action in a tough spot – they have to at least implicitly argue that policies based on diversity result in blacks and Latinos being over-represented relative to their representation in the population, an argument that is easily disproven with statistics. 

All that said, there’s something else here: affirmative action programs based on diversity do not result in overrepresentation of blacks and Latinos at just about any university that is not an HBC, and at most non-Ivy private schools that use the diversity rationale, they are severely under-represented.  This can only lead to two conclusions, both of which are uncomfortable though they shouldn’t be equally so: either (a)blacks and Latinos are inherently inferior, or (b) we still have not overcome the legacy of racial discrimination, and affirmative action policies based on “diversity” are just an attempt to make up for racial discrimination that the institution doesn’t want to acknowledge is racially discriminatory. 

I don’t intend to sign up with the KKK anytime soon, so I’m going to say option (b) is about 1000% more likely.  And indeed, when you look at the case of the Ivies, there is something that is pretty damn racially discriminatory that they should be making up for: the legacy system.  Suffice to say: if we want a color-blind society anytime in the next several decades, legacy systems will have to go first.  Until that time or until something resembling racial economic equality is achieved through the effects of affirmative action, poor and middle-class whites will be the ones to bear the costs of legacy admissions policies.