The Supreme Court yesterday decided to take up a new affirmative action case from the University of Michigan, along with the case from the University of Texas they are already considering. I don’t know what the Supreme Court will decide, or what it ought to decide on the basis of constitutional text and judicial precedent (although the appeals court’s logic in upholding Michigan’s program seems wildly tortured to me), but libertarians do not necessarily oppose state-sponsored affirmative action. Yes, that’s right: even state-sponsored racial discrimination can be justified for libertarians.
Now, affirmative action is generally not a big issue for libertarians. I’ve never heard a libertarian spontaneously bring up affirmative action as an important area of government overreach. It certainly doesn’t exercise libertarians the way the drug war, perverse economic regulations, protectionism, failed foreign wars, and even Bloomberg’s soda ban do. Nevertheless, my impression is that most libertarians oppose all state-sponsored discrimination on the basis of ascriptive criteria (race, gender, religion, etc.), except where necessarily related to the legitimate task or purpose the government is undertaking.
But deontological libertarians also believe in restorative or restitutive justice. And it cannot be denied that governments in the United States have historically harshly discriminated against African-Americans. For libertarians, those governments are morally required to compensate the victims of their injustice. For that reason, libertarians support financial “reparations” for victims of segregation.
But what about broader programs like those in university admissions that are intended to benefit all blacks? The last Jim Crow laws and practices were forcibly stamped out in the 1960s, almost 50 years ago. Does that mean that blacks born after the days of legally mandated segregation deserve no compensation? Not at all. Descendants of those discriminated against still carry some of the burdens of that discrimination. As generations pass, identifying the present-day victims of past injustice becomes more difficult and, eventually, impossible. Reparations for slavery would be difficult to implement justly; reparations for dispossession of Native Americans even more so. But within one or two generations, we can still identify victims and come up with plausible measures of the compensation they deserve. By analogy, I can’t imagine that any libertarian would say that the family of someone murdered by police don’t deserve any compensation, even though they were not the “first-order” victims of injustice. They still suffered injustice.
But don’t racial preference programs benefit all members of a racial minority group, whether or not they are descended from victims of gross, systematic, state-sponsored injustice? For instance, an immigrant from Africa could benefit from Michigan’s affirmative-action admissions policy. Here there are two points to make. First, courts have ruled out compensatory justice as a rationale for affirmative action in university admissions. So to satisfy the moral principle of restorative justice, universities have to come up with a different stated rationale: promoting “diversity” on campus. Racial preferences, rather than preferences for victims of gross injustice, are a “second-best” solution to this legal problem. Second, procedural justice might also justify affirmative action.
Suppose you believe that private, social discrimination against people who are visibly black remains a significant problem in American society, as seems likely. In their education and home environments, blacks might on average experience more significant challenges than whites and others. Adopting a formally race-blind admissions policy would fail to take these factors into account and would not actually satisfy the procedural justice principle of racial neutrality. Implementing racial neutrality in university admissions might require taking race into account, in the absence of better metrics of the amount of discrimination a student has faced.
Isn’t this procedural justice principle of racial neutrality an “end-state” or “patterned” principle of justice, which libertarians oppose? Not at all. The principle does not aim at any particular pattern of racial diversity in admissions. Rather, it aims at maintaining a fair procedure for deciding admissions. Achieving fairness toward people of all racial backgrounds might require violating a purely formal principle of racial blindness. To put the point another way, racial blindness can mean systematic racial bias.
But doesn’t affirmative action in university admissions actually hurt the intended beneficiaries, by admitting students who are not capable of performing the work required of them? That may be; it is an empirical question. Still, it is an odd argument for anti-paternalist libertarians to make: “We should provide people with fewer opportunities, because by giving them opportunities we are duping them into failure.” Libertarians don’t generally accept that kind of logic. If black students saw affirmative action as hurting them, they wouldn’t want it. Ultimately, it shouldn’t be up to mostly white admissions officers to decide for black applicants what is good for them, should it?
Again, all of this is aimed at moral theory. Can state-sponsored affirmative action be justified in principle? Yes. Is it constitutional? Is it effective at achieving its purposes? Those are separate questions I am not trying to answer here.