Affirmative Action and the Burden of Argument

Some lessons to draw from a scholar of Black Lives Matter, as Trump’s Justice Department goes after affirmative action.

By Nathan Pippenger

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Amid the appointment of so many unqualified people to positions of power in the Trump Administration, there was something aberrant and ominously revealing about the selection of Jeff Sessions for attorney general—a fitting personnel choice following a campaign with few coherent themes besides white racial resentment. It was only a matter of time before the Justice Department, under this new management, turned the resources of its Civil Rights Division to the pressing crisis of anti-white discrimination in affirmative action. Tellingly, this new effort is not being headed by the Division’s career lawyers, but by its political appointees.

This is unquestionably dispiriting news—in the short term, there’s not much anybody can do about this drastic change in priorities, and Sessions’s DOJ may very well succeed in weakening or eliminating many universities’ affirmative action policies. But if there’s one lesson that the conservative movement has to offer, it’s that one should never discount the long game. (Who would have guessed that Jeff Sessions, whose racial views were considered retrograde in the Reagan era, would be setting the nation’s civil rights agenda in 2017?) In that spirit, let me recommend a short Chronicle of Higher Education interview with political philosopher Christopher Lebron, author of a new book on Black Lives Matter. Lebron’s approach is to situate current political struggles in historical perspective, drawing on earlier African-American thinkers and activists and putting their “radical lessons” in dialogue with contemporary African-American interlocutors who, Lebron argues, have adopted excessively individualistic views on racial issues. In the Chronicle piece, Lebron sums up his rebuttal to conservative racial politics by insisting on history and context: “We didn’t build the ghettos. We didn’t build housing segregation. The fact that white schools, being in certain tax districts, are almost as good as private schools, while other public schools are in the dump…we didn’t choose that.”

I thought of Lebron’s words this morning while listening to a slightly exasperating NPR interview with Vanita Gupta, a former head of the Civil Rights Division. In it, Gupta explains why this move is such a drastic departure from the Division’s normal practice. Much of it, however, consists of the two NPR hosts bending over backwards in an attempt to goad Gupta into saying that perhaps this move is justifiable in some way. Their effort is no less striking for being unsuccessful, and it’s hard to convey the sense of it in words alone; you really should listen for yourself.

The problem, to be clear, is not that NPR evidently wanted to air a conservative viewpoint on affirmative action; it’s how they went about doing it. Instead of bringing on a credentialed conservative expert to make the case for this new approach, they brought on a liberal and attempted to harangue her into admitting that maybe, in some universe, there could be a good reason for it.

At no point, however, do the hosts offer any evidence or argument to support this repeated insinuation. Rather, it is the background premise to a series of questions posed in tones of showy incredulity, questions which have the effect of lifting the burden of argument from affirmative action’s opponents—as if it were the unique responsibility of its embattled defenders to supply the reasonable counterarguments that their opponents in power either cannot or will not provide. Again, quotations can only partially capture the tone of questions like: “Is it actually your view that white people are not being discriminated against by universities?” Or the gesture at (what is always a hypothetical) justification in this query: “But is it valid on the Trump Administration’s part, at some level, to make sure that universities stay within the constraints of [affirmative action] case law?” Or: “You’ve explained the law—that affirmative action is legal…Yet as I’m sure you know, on a political level, raising this issue does speak to a lot of white Americans, who feel that on some level, if an African American gets an advantage at something, that is taken away from a white person. On a basic level of fairness, what do you say to people who feel that way, who may feel that they relate to this policy change?”

What can a person possibly say in response to this last question? Affirmative action is legal, and there’s no reason to think universities aren’t complying with the case law. Is the Justice Department now also tasked with carrying out a legal agenda based on the inchoate feelings of people who think that some advantage an African American “gets” is “taken away from a white person”? In the spirit of Lebron’s critique, it’s as if context and history didn’t exist—as if politics only entered the educational process at the point of college admissions. Eighteen-year-olds stepping onto campus for the first time must have emerged from some kind of political and social vacuum without mass incarceration; where massive differences in income, wealth, and health don’t exist; where residential and educational segregation don’t exist; where there’s no racist President in the Oval Office. Of course, a country like that produces innumerable advantages and disadvantages which, apparently, we can live with; only certain others are so offensive as to require action by the Justice Department. Given the deep and durable racial inequalities perpetuated by that selective concern, we might ask the status quo’s defenders to take up more of the burden of explaining their views, rather than putting that burden disproportionately on people who want to do something about it.

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Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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