Academe’s Allergy to Discussing Racial Preferences

The cycle in which Ilya Shapiro, incoming director of the Georgetown Center for the Constitution, finds himself is familiar enough that he may have intended it: An academic or university administrator says something potentially incendiary, often on social media; students at the institution and outside commentators get upset and call for the offender to be fired; the university, in its official statement and in the person of its executives, hems and haws and doesn’t seem able to satisfy either the frustrated parties or the partisans of free speech who think the whole situation is much ado about nothing. In Shapiro’s case, the offense came in the form of a series of tweets. He wrote that President Biden’s public pledge to nominate a Black woman to the Supreme Court would lead to an “asterisk” being placed next to that woman’s name, and, given his view that the best plausible candidate was Sri Srinivasan, an American of Indian descent, would lead to a “lesser black woman” being the nominee.

Critics, including just about every progressive group at the Georgetown University Law Center, seized on that awkward deployment of “lesser,” taking it to mean that Shapiro thought that Black women were, in general, lesser than other kinds of people. But in context it’s hard to imagine Shapiro really had anything other in mind than the idea that, if the best candidate is the man Shapiro preferred (who probably doesn’t find his name being dragged into all of this very pleasant either), then all other candidates are lesser in the sense of not being best. Nevertheless, Georgetown suspended Shapiro and initiated an “investigation.” It’s hard to know exactly what will be investigated when the problem is a few tweets that anyone can read in a matter of seconds. Presumably, the university will be weighing the legal and public-relations risks both of disciplining and of not disciplining Shapiro.

There are inconsistencies, perhaps even hypocrisies, on both sides of the debate about the Georgetown kerfuffle. As Michelle Goldberg wrote in a column that otherwise largely supported Shapiro, she “couldn’t find any instance of Shapiro claiming that Amy Coney Barrett had an asterisk beside her name because then-President Donald Trump promised to choose a woman to succeed Ruth Bader Ginsburg.” Indeed, some Republicans pushed for the nomination of Florida’s Barbara Lagoa, thinking it might help the party gain support among Hispanics — a very similar situation to Biden’s, though without the explicit pledge. On the other hand, as the Foundation for Individual Rights in Education noted, Georgetown supported a professor in 2018 who had said that “entitled white men” supporting the Supreme Court nominee Brett Kavanaugh “deserve[d] miserable deaths.” (That professor, for what it’s worth, came out in support of Shapiro’s right to speak and tweet his mind.)

Even highly progressive commentators like Jeet Heer and the “1619 Project” organizer Nikole Hannah-Jones agreed that Shapiro’s tweets were not beyond the pale. But the universality of such judgments outside of Georgetown seems to have had little effect on what goes on within the university, which is probably most concerned with the potential disruptions of protests and the risk of lawsuits.

The difference between what’s acceptable on campus and what’s acceptable, and even sometimes what’s a consensus, outside campus affects many issues of racial preference. In a recent poll, three-quarters of respondents disapproved of Biden’s pledge. Similarly, polling shows that majorities of white, Black, Hispanic, and Asian respondents all disapprove of racial preferences in college admissions. Solidly blue states like Washington and California have voted down the use of racial preferences in admissions and hiring by public institutions.

But perhaps because it is such a salient part of the machinery of higher education itself, this widely held view is incredibly incendiary within academe — and rarely has outspoken public representatives. Racial preferences are essential to elite universities’ present functioning, to colleges’ attempts to achieve a roughly proportionate demographic representation of the country in their student body. And increasingly it seems that limits on objections to racial preferences, or even to arguments about their extent or pervasiveness, are important for ensuring that students in preferred demographic groups can feel at home in their academic institutions.

Yet it is the very centrality of racial preferences to higher education that seems to demand a more open conversation. Without that openness, one can easily get the impression that university administrations are using their perhaps too-easily-offended students to deflect criticism of race-based preferences, including their own policies. And one might think that this kind of openness is especially important in law schools, which after all train many future lawmakers and judges on both sides of the political aisle.

If academic freedom doesn’t protect statements like Shapiro’s, then it protects hardly anything. On Twitter one professor insisted that “I cannot emphasize [sic] how you cannot simply say everything is ‘academic freedom’ when dudes say racist or sexist things.” But just what constitutes racism and sexism in the context of widely instituted race and gender preferences is precisely what Shapiro and others are debating here. What sort of broad group equity should our society aim at, and what sort of presumptions, and what sort of discrimination, does this license at the individual level? This is obviously a topic of broad concern, on which a wide variety of opinions exist. Even if some don’t think that debate is important, off-campus politics makes it clear that it is far from settled.

Of course, it’s not the case that a popular view must be popular within the academy. We can’t immediately infer that anything most people believe is reasonable. But academics should acknowledge that many of their institutions practice, and they as a group seem largely to support, a kind of identity preference that is quite unpopular outside the ivory tower. In the Supreme Court’s Grutter v. Bollinger decision about 20 years ago, Justice Sandra Day O’Connor anticipated that such preferences would need to be instituted for only about 25 years before the problems of inequity they were meant to address had been ameliorated sufficiently for them to be removed. The Supreme Court is now reviewing anti-affirmative-action lawsuits against Harvard and the University of North Carolina at Chapel Hill. Universities might want to inhibit that debate, but it’s going to find them one way or the other.