This is part ten of an ongoing series on affirmative action that I've been continuing sporadically. The first post is here. It introduces the series and provides links to each post in the series. This is my final post on the arguments in favor of affirmative action, and I've saved the one I think is best for last. One common objection to affirmative action is that it's in principle ruled out by the 14th Amendment. The Supreme Court hasn't been willing as a body to go along with this, but three justices (Rehnquist, Scalia, Thomas) do seem to me to think it's a good argument. If it's unconstitutional to discriminate on the basis of race, then why is it ok to discriminate in admissions on the basis of race?
I don't ultimately think that's a good argument, for one reason. Race can be used as the basis of discrimination when race is relevant. If a government-funded performing arts company decided to stage a perfomance about Malcolm X, they are well within their rights to discriminate against white or Asian actors for the part of the lead character. They'll want someone black. If they were doing a perfomance about President Bush, they won't select a black lead unless they want to do some weird sort of parody. [People sometimes do this. Othello has been done with the races of characters all reversed.] Most of the time it's perfectly ok to see being black or being white as a qualification to play a character who is specified as black or white. It's technically discrimination, but it's not legally discrimination, because race properly counts as a qualification for the position in question. Some have argued that affirmative action can be justified on similar grounds. If race counts as a qualification, then affirmative action is merely treating qualifications as what they are. Not using affirmative action would then be ignoring real qualifications.