Minimums and Individuals

Ian Ayres and Sydney Foster have posted a Texas Law Review article they wrote entitled Don't Tell, Don't Ask: Narrow Tailoring after Grutter and Gratz. I haven't read the article yet, but the gist of it is that in the wake of Grutter and Gratz, there has been a subtle realignment of the constitutional standard for race-conscious decision making by governmental bodies. Previously, the standard was that the usage of race had to be done as narrowly as possible to achieve the legitimate governmental objective. But, Ayres & Foster point out, the affirmative action plan upheld in Grutter actually likely was more dependent on race than the plan rejected in Gratz.

In light of this, Ayres and Foster claim that the new relevant standard is whether the affirmative action plan gives "individualized consideration". Gratz's impersonal points system does not satisfy this requirement, but Grutter's more ambiguous "critical mass" proposal did. However, A&F say this effectively encourages policymakers to simply not tell how large of a racial preference they're giving, with the promise that by doing so they'll receive court deference. Hence, they recommend that the court's return to the minimum necessary preference standard, which allows for weighing the relevant constitutional costs and benefits of particular race-conscious policies.

I find this argument interesting primarily because my own conceptualization of race-conscious programs relies very heavily on the individualized nature of them. To my mind, race consciousness can be defended primarily because racial identity is as "individually" mine as the fact that I'm Jewish, or (sometimes) smart, or graduated from Carleton, or like ice hockey. Whatever my race brings (or doesn't bring) to the table, that is something that decision makers can evaluate individually, for me and every other candidate. Since I believe that (among other things), contribution to racial diversity is a meritorious contribution to an institution, I think that this sort of analysis is part of how one engages in meritocratic evaluation.

I'm skeptical of a minimum usage standard because I believe they buy into a colorphobic image of American society that I think is ultimately damaging to efforts at racial healing and equality. They implicitly concede that race is something scary and dangerous, and we should try to use it as sparingly as possible, lest it taint us. I'm not convinced of this. I think that the plurality of racial identities in America are a source of beauty, strength, and character to our nation, and should be drawn upon to the extent that they are useful, relevant, and meaningful. That can never happen so long as the very concept of racial difference is seen as poisonous.

But, as I've said, I've yet to read the article. So perhaps I can be persuaded otherwise -- or perhaps my objections have no relevance to what was actually written.