We frequently hear the following analogy used as a justification for affirmative action: Suppose that there were a game between two football teams, and during the first half one of the teams enjoyed all kinds of unfair advantages—its players were allowed to cheat in various ways, the referees made all kinds of unfair calls, and so forth. As a result, the first team ran up a big lead. Then, after halftime, it was announced that from now on there would be no more cheating and bias—but the score was left unchanged and the opposing team was given no offsetting advantages.
Now, isn’t that essentially the situation we have now in the United States, with blacks and whites, and doesn’t this just go to show why there needs to be something other than just colorblind law, in order to make up for past discrimination?
Before discussing why this is a bad analogy, though, I have to point out that (a) something on the order of this analogy is the only justification for racial preferences that anyone actually believes (that is, no one really takes seriously the claim that, for example, the “educational benefits” of “diversity” justify racial discrimination in college admissions); and, most importantly, (b) the Supreme Court has rejected this justification—that is, America’s general history of past discrimination—for racial preferences. So, whatever its undoubted visceral appeal, the analogy is a nonstarter, legally.
But, the law aside, the analogy is also deeply flawed.
To begin with, it reflects the Left’s insistence that economics and race relations are zero-sum games. But whites and blacks are not in competition with one another, and the glory of capitalism is that everyone can grow richer.
So instead of a football game, the better analogy would be to a marathon with lots of individual runners, who are wearing jerseys of a variety of different colors. Moreover, it is a race in which each runner is perfectly happy for all the other runners to finish and run well, even if many would prefer to finish first themselves.
But wait: There’s more.
Few of the original runners are still in the race. Most have retired from the race at various times (maybe all, depending on when you want to consider the race to have started). The most that can be said is that runners pass along their jersey of one color or another to their children, and sometimes after mixing the original color of their jersey with another color.
It’s also a marathon in which, while there might have been mostly black and white runners to start out with, there have always been runners of other colors. And, most recently, lots of Latino and Asian runners have been joining the run, and indeed some black and white runners related to no earlier runners are just now joining, too. What’s more, these new runners join the race at different points on the course: It’s accepted that some may start far back in the pack, but many of the new runners do not, and no one expects them to.
Now, it is true that, when the race began, the black runners had to carry weights that the white runners did not. But most of those weights have been removed over time. No one can deny that weights still exist, but everyone knows that the weights are much less now and that fewer and fewer of the current runners ever had to carry the weights that were common 50 years ago. And indeed many whites have had to wear at least some weights recently.
Finally, it is also impossible to tell how much of the existing gap between the descendants of the black runners and the descendants of the white runners is because of those old weights. For the truth of the matter is that some black runners and some white runners have always been faster (or just luckier) than other white runners and other black runners, weights or no weights. A runner’s speed can quickly make up for the weight his grandfather had, and of course a refusal to run—or, worse, an insistence on running in the wrong direction—can be the greatest weight of all.
So what the supporters of racial preferences want to do is not require that the second half of a rigged football game be played so that it’s now rigged in the opposite way. What they want is for the white runners (and, frequently, the Asian runners, and sometimes maybe some runners of other colors) to be weighted down and/or for some of the black runners (and, again, sometimes maybe some runners of other colors) to be moved ahead in the race.
The reason for this policy is because the positions of some runners in the race now might be the result of the fact that some black runners in the more and more distant past were weighted down. But, as we have seen, where you are in the race is complicated by many, many other factors, some recent and some not so recent. And note that some of the white runners who are being given weights began the race well behind some of the black runners who are now being moved even further ahead.
So, how much sense does this policy make? Right—not much.
One last point: It may or may not make sense to want the runners to be bunched together more, and, in particular, to help the runners who are farthest behind, but it makes no sense in 2011 to use the color of the jersey as a proxy for where in the race the runner is.
Roger Clegg is president and general counsel of the Center for Equal Opportunity.