‘Diversity in America’

To the Editors:

Andrew Hacker’s review of my book, Diversity in America [NYR, August 14, 2003], contains a number of factual and analytical errors, some of them quite serious.

1. Affirmative action is not “at the core of [my] book.” It is the subject of only one of eight chapters and less than 20 percent of the book, which analyzes how we do and should manage diversity in many different policy and social contexts.

2. The book is not a “lawyer’s brief opposing race-based programs.” Reviewers in the Nation, New Republic, and New York Times, among others, have cited its remarkable evenhandedness in developing the arguments pro and con. Hacker fails to mention that I accept the constitutionality of preferences, at least as to blacks, but not their policy wisdom.

3. The principle that the law should judge people as individuals, not as members of ascribed groups, is not a claim of “white rights”; it is a claim of universal human rights and one to which the vast majority of blacks and other minorities also subscribe.

4. As Hacker asserts, private universities do receive public funds and they are and should be subject to the Civil Rights Act. But that law requires nondiscrimination, not race-based preferences; it is the latter that I would allow private, but not public, universities to institute. Hacker mindlessly conflates this distinction between nondiscrimination and preferences, which is fundamental to a liberal, diverse society.

5. In a particularly grotesque misstatement, Hacker writes that I advise that black students “not compete for places in the more selective universities.” I say nothing of the kind. What I do say is that they should compete for those places as individuals and on an equal basis.

6. Hacker writes that I have “nothing to say about” the advantages enjoyed by legacies and athletes. Here’s what I do say (page 154): “Most of the special treatment for athletes and legacies bears no relation to a defensible conception of merit” and that I would reject them if I were a university president.

Peter H. Schuck
Simeon E. Baldwin Professor of Law
Yale University
New Haven, Connecticut

Andrew Hacker replies:

Peter Schuck’s letter seems to me more revealing than his book. My responses are keyed to his numbers.

1. Along with his scrutiny of affirmative action (the longest chapter in the book), Schuck also examines official efforts to locate black families in white neighborhoods, which is a variant of affirmative action. Together, these sections make up over half the substantive content of Diversity in America.

2. Schuck’s treatment is “evenhanded,” if by that is meant the tactic of first summarizing an opponent’s arguments, all the better to demolish them as the discussion proceeds.

3. True, most people nowadays will say they favor “universal human rights.” The issue is who stands where in the queue, and how the places are allotted. In states that have ended affirmative action, the effect has been to reduce black enrollments and raise those of whites. Indeed, one aim of ending it is to give marginal white applicants like Grutter and Gratz an extra edge.

4. Schuck’s support for affirmative action, such as it is, is confined to private colleges, which enroll less than a quarter of all students. Thus he would not allow schools like the University of Michigan, the University of Texas, and the University of North Carolina to take extra steps to accept black applicants. In this, he sides with Justices Rehnquist, Thomas, Kennedy, and Scalia.

5. What happens when black students compete for top-tier places “as individuals and on an equal basis”? Given the weight accorded to LSAT scores, there would be far fewer black students in Yale Law School, were it to follow Schuck’s advice. If he is undisturbed by that outcome, why not say so explicitly?

6. I should have said Schuck has nothing significant to say about the extent and consequences of giving preferences to alumni offspring and athletes at Ivy-level schools. These beneficiaries are predominantly white, especially with the growing emphasis on sports like lacrosse, volleyball, and crew. Indeed, they easily outnumber black students aided by affirmative action. If undeserved advantages are the issue, they warrant full discussion and with reference to all races.