Race to the Bottom

Imagine that you are an angry young student. Perhaps your name is Bakke, perhaps it is Grutter. You would like to live in a color-blind society. But when you are applying to the prestigious graduate school you wish to attend, the application asks you your race. The question is described as "optional," but you know, to a reasonable certainty, that if you answer it one way, you will be offered admission, but if you answer it another, you will be rejected. So you go ahead and check the "Black/African American" box. The Dean of Admissions may look at you funny when you arrive, but hey -- that'll be a lesson in how dumb racial categories are, anyway.

Except that you don't. Instead, you mark the "White" box, wait for your rejection letter, and file suit.

I'm confused here, I have to admit. As far as I can project, mass civil disobedience of this specific nature -- putative "Whites" self-identifying themselves as "Black" on standardized forms -- would wholly destroy affirmative action in this country, and virtually overnight. Even a few isolated instances, if publicized and appropriately litigated, would do enormous damage to the system. So why hasn't this happened? Why haven't whites with chips on their shoulders attacked the system of racial classification at its root: the moment of checking one box or another?

The power of this trick is that it gives middle-of-the-road pro-affirmative action liberals a truly painful choice. One the one hand, they can accept these self-identifications at face value, in which case affirmative action becomes practically useless because too many people self-identify as "Black." On the other, they can insist that these people are really white, and must be counted as such. But this position is politically self-destructive, because it essentializes and institutionalizes race in a way anathema to the basic liberal consensus on racial issues, in which discriminiation against racial minorities is an unfortunate historical holdover whose effects have yet to be undone. There are ways out of the trap, but they won't play well on TV. As a practical matter, faced with this tactic, affirmative action wouldn't have a chance.

Obviously, anyone who does something like this will be charged with rank hypocrisy. After all, the point of the protest is that you aren't the race you mark on the form. But these charges aren't going to stick. After all, you just claim you're playing by the hypocritical rules of the institution whose forms you're filling out. You'll also have decades of liberal rhetoric to rely on in refusing to let anyone else categorize you against your will.

So, once again, I ask, why hasn't the right adopted this tactic? Here are the answers I've thought of, none of which strikes me as genuinely convincing.

Ideological commitment: people who dislike affirmative action are too principled in their commitment to colorblindness to lie about race. They're willing to opt out of the system by skipping that part of the application, but to fill out the wrong box would be to adopt the logic of an immoral system.

I don't buy it. There are simply too many people who hate affirmative action, including some incredibly venal and mean-spiritied folks, for high principle to be credible as a common characteristic shared by all. But, conversely, I also don't buy . . .

Simple racism: people who dislike affirmative action are too principled in their racism to lie about race. The idea of claiming to be black is such a repugnant thought to them that they would never be willing to espouse such a tactic.

The same objections apply as above. There are plenty of people, people who self-identify with every conceivable ethnic group, who genuinely oppose affirmative action. Whether or not total color-blindness is a good goal or achievable, there are many who think that it is both.

Complex racism: people who dislike affirmative action don't want to go to a color-blind society. They find it a useful debating tactic, but they'd rather maintain a society with effective caste divisions (or gradually drive minorities away from the society entirely). Playing my civil disobedience game would force them into taking the rhetoric of color-blindness too seriously.

This is less severe a position, but I think it's also less plausible. People are willing to carry ideological fictions to remarkable extremes if they make effective progress on other issues by doing so. Nor do I think that exploding affirmative action in this way would really expose this sort of contradiction.

Tactical bias: people who dislike affirmative action associated civil disobedience with them. That's one of their tactics; we'd never do something like that.

Two words: Operation Rescue. The left has no monopoly on civil disobedience.

Timidity: so you mark "Black" on the form, and then you get expelled for lying in your application. So much for your medical education, eh? Compared with the get-rejected-and-sue method, this technique is just too risky.

Sure, except that a university that expels you for lying on a question about what "race or ethnicity you think best applies to you" is getting onto pretty shaky ground there. Politically, they've played right into your hands.

They're winning already: with the Supreme Court taking up the Grutter case, foes of affirmative action don't need to play the civil disobedience game. They can just wait for their ruling and walk away happy.

Sure, George, but what about the last twenty-five years? After Alan Bakke came within one vote of bringing the system down, surely someone would have come up with something better than just trying again on the same claim until enough justices retired.

It doesn't work: this trick has been tried, but it didn't work. The passer got caught, got expelled, sued, and lost on a doctrine that's not open to reasonable challenge. There are plenty of ridiculous doctrines out there, after all.

To this, I can say only: show me the case. If anyone has a citation or a news article or other documentation, I'm all ears. I'm also open to new theories more convincing than mine.

I should probably also note the point of this discussion, from my perspective. Among other things, I'd like to suggest that the standard liberal consensus on affirmative action -- as powerful as it may be at times -- has already surrendered too much to its conservative foes. This surrender may have been necessary to convince much of American society to go along with the program, but that doesn't make the position right in a moral sense. On this issue, as on so many issues, American society has shown a remarkable penchant for blindness and injustice.

Blindness, note, not color-blindness. That's how we got into this mess, after all.