Charles Kels: Finding a middle ground on affirmative action

The pending University of Michigan cases before the Supreme Court have provoked a lot of healthy debate on college campuses about affirmative action. Unfortunately, this debate has been more vigorous than fruitful.

The debate has shamefully neglected the crux of the legal issue: whether the particular way that the University of Michigan instituted its affirmative action policy is consistent with the Supreme Court's holding in the 1978 Bakke case.

In that decision, Justice Powell wrote that an admissions committee could consider an applicant's race as a "plus" to foster the worthy goal of diversity. But a "dual admissions program," insulating applicants of different races from one another in the competitive admissions process, "impermissibly infringes" individual rights.

Instead of asking the pertinent question (whether Michigan's point-value system constituted a "dual admissions program"), student activists with little knowledge and firm opinions have used the University of Michigan lawsuits as an opportunity to address the validity of affirmative action in general.

Like most controversial issues from abortion to gun control, the affirmative action debate has unfortunately been controlled by the extreme positions on either side. Not surprisingly, both sides are flat-out wrong.

Ardent opponents of affirmative action argue that it's bad simply by restating what it is -- a system of racial preferences. They somehow think the rest of us have forgotten this and that to remind us of it will prove that affirmative action is wrong.

But saying that affirmative action is wrong because it is a system of racial preferences is like saying that capitalism is wrong because it's a system of free markets. Redundancy gets us nowhere. These critics are confusing statements of value with definitions.

Take for example the University of California at Berkeley College Republicans, who held a bake sale where they charged blacks less than whites for the same cookies. Appearing later that week on The O'Reilly Factor, they seemed very satisfied with all the commotion they had caused. But they surely hadn't said anything new, persuasive or revealing.

Vocal supporters of affirmative action argue that it's good because diversity is good. If something helps bring about a good result, then it's good, too. But this transitive property does not hold; sometimes, good ends are accomplished by bad means.

In fact, what the extreme proponents lose sight of is that the practice of judging someone even partially based on race is bad. By ignoring this critical value judgment, the supporters lose their best argument in defense of affirmative action -- that it is not meant to continue in perpetuity.

Affirmative action is not supposed to live forever. This is true in two senses. At the individual level, race should become less and less of a criterion as people proceed through life because at some point, we all have to be judged solely on our performance. Racial preferences should play a smaller role in promotion to CEO than in admission to Penn.

At the institutional level, racial preferences should last only as long as we absolutely need them to promote diversity, and not a second longer.

Consider Article 1, Section 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, ratified at the United Nations in 1966: "Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups... shall not be deemed racial discrimination, provided, however, that such measures... shall not be continued after the objectives for which they were taken have been achieved."

A means should not outlive its end. Inequality is tolerated only to remedy a worse inequality. The best justification for affirmative action is that if we have it now, we won't need it later. Then its noblest goal will have been achieved.

Charles Kels is a third-year Law student from Hartford, Conn.

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