What's the Big Deal about Racial Preferences?

Abstract

Let me begin by thanking Jim for organizing this symposium. He is a very good-spirited opponent on a difficult topic. Over the last year and half, my understanding has broadened considerably as a result of the several discussions we have had. I look forward to continuing this conversation. In broad outline and in many of its details, Jim’s paper reinforces the main thesis of my paper. Both of us call attention to the same feature of modern democratic life, namely, the temptation of institutions constantly to dispense with formal rules in order to get results that they deem desirable for one reason or another. In these comments, I want to note our very different responses to this feature of political life. And I’ll briefly restate the primary reason why I think my approach to this problem is superior to Jim’s, at least in the area of racial preferences. Along the way, I’ll mention one way that Jim’s paper seems to mischaracterize the approach I’m suggesting. Both Jim and I agree that modern democracies constantly are tempted to shortcut formal decision making. Partly this is democratic temperament: we want to get immediately to the end or goal that we deem desirable. Formal restraints, rules, and procedures that impede our ability to get the results we want frustrate us, and we often set them aside. Thus while as a general matter, we elevate the importance of criminal due process and observance of legal technicalities, we think it appropriate to jettison those constitutional forms if they do not achieve their end. The judgment to dispense with constitutional forms can be exercised constitutionally, by an executive, when there is no time for due process in an emergency. Or it can be exercised legitimately by a people fed up with tyranny. Or finally, it can be exercised illegitimately by institutions that proceed directly to implement one or more favored agendas or policy prescriptions. The democratic tendency to set aside rules reflects the ambiguous status of formalities in modern democracies: we do not view following rules as an end in itself, but rather a means to certain natural rights, like life, liberty, and pursuit of happiness. So even as we sometimes elevate the importance of following the correct procedures, we see these procedures as themselves means to another, greater end. And we’ll readily dispense with them when we don’t think they’re achieving that end. My paper discusses one such example, namely, the practice of colleges like the University of Michigan of setting aside their rules to get a certain racial result. Jim’s paper provides more examples in which the university seems willing to dispense with formal rules in order to create special exceptions designed to achieve a certain results in the most efficient way possible.