The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions - Review

Reason, Feb, 1999 by Richard A. Epstein

These observations are incomplete because they do not address how affirmative action should be implemented, if at all, within state-run institutions. I confess that I am uneasy about the predictable conservative response that the Equal Protection Clause requires that states hew to a colorblind approach. That principle works well when it requires that the same penalties be given to all individuals who commit the same offense, or at least to rule out race as a ground for more serious punishment of one individual than another. I have heard little sentiment anywhere for affirmative action in the criminal code, even though many voice concerns about an implicit racial bias in law enforcement.

Yet here we are not dealing with the forms of protection supplied by the night-watchman state. We are dealing with the distribution of public benefits to various citizens. I freely confess that there is no first-best solution to this problem, because no one can explain why higher education should be part of the public sphere in the first place. But there it sits, and it dispenses huge subsidies to a fortunate few who gain admission to its programs. These public institutions are in direct competition with private ones. Why, then, should they be precluded from adopting practices that private educators think indispensable for their colleges and universities in the current social and intellectual environment? It hardly matters whether I agree with their judgment or not: No one should be allowed to elevate his own views on affirmative action into an immutable first principle. But owing to incessant political pressures, it is not possible to decentralize decisions by public institutions about whether, and if so how, to implement an affirmative action program. And so we lurch from extreme to extreme.

The idea of a "national conversation" about race rests on the facile assumption that dialogue will yield a single solution backed by a broad social consensus. But this industrial-policy approach to affirmative action is subject to the same fatal objection that is raised against it in banking or computer research: too much central planning. Our core national commitment should be to a rule of law that creates zones of private authority where individuals may form voluntary associations that reflect the aspirations of their members and not those of the population at large. Bowen and Bok would have done us all a great service if they had stressed the sound institutional framework for making decisions about affirmative action rather than pushing their own preferred policy outcome. "Leave us alone" offers a much stronger foundation for affirmative action than "we are surely right."

Richard Epstein (r-epstein@uchicago. edu) is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago His latest book is Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Press).