In writing the opening sentence of this column, I first began by referring to Justice Scalia’s musings about whether affirmative action "hurts those it is intended to benefit." But I rewrote the sentence after considering that as a doctrinal matter, applicants who receive consideration under affirmative-action policies are not considered beneficiaries. Universities benefit, corporate America benefits (as a group of Fortune 100 companies tells the court in a brief in the current case) the military benefits (as a group of retired officers famously told the court in the Michigan case). Society as a whole benefits, as Justice O’Connor explained. It’s almost as if minority students do everyone a favor by showing up, but we can’t acknowledge that they themselves get anything out of the bargain.And that drives home the difficulty people have understanding affirmative action! Greenhouse has followed the issue for decades, writing about it in detail, and sitting down to write about it one more time, she forgets the basic structure of the legal doctrine. I've seen this raging ignorance over and over. I'm saying "raging" not to disparage Greenhouse, but to visualize the ignorance of affirmative action doctrine as a beast with a lot of fight in it.
What's going on?! Part of it is, I think, people who support affirmative action don't approve of the theory. They would prefer to see affirmative action as benign, a benevolent assistance to members of traditionally disadvantaged groups. But, as Greenhouse eventually got around to reminding herself, that isn't the theory at all. The good or bad visited upon the minority students is actually irrelevant in the doctrine that is so hard to remember. They don't need to be recipients of good. They're supposed to provide the good, improving the educational experience of all students.
It's not just the supporters of affirmative action who have trouble remembering the actual legal theory. Last week, I blogged about Thomas Sowell's misunderstanding. He'd written:
Affirmative action is supposed to be a benefit to black and other minority students admitted with lower academic qualifications than some white students who are rejected. But Justice Scalia questioned whether being admitted to an institution geared to students with higher-powered academic records was a real benefit.I had to say:
Actually, affirmative action is supposed to be a benefit to the entire student body. That's the compelling interest that the Court has relied on to justify race discrimination. But it should be a benefit to the students who are admitted under the program, and if it is not, then they are being used for the (purported) benefit of the whole group of students.Unfortunately, perversely, the Supreme Court has an extremely important doctrine that affects millions of people and riles American politics, and almost no one gets it. Those few who get it probably don't agree with it, even when, like Greenhouse, they agree with the results.