What The New York Times Gets Wrong About Affirmative Action

This year’s Supreme Court docket could dramatically alter racial policy in America, with cases that could invalidate two key achievements of the civil rights movement: The Voting Rights Act and affirmative action.

Both policies are liberal ideas with some conservative friends – Martin Luther King’s iconic voter protection law was last reauthorized by George W. Bush in 2006, while the affirmative action case has brought out support from Republicans, retired generals and corporate America.  Progressives are also standing firm. Fifty years after Selma, voting access remains a core issue for Democrats and their most loyal constituency, African-Americans, while a host of liberal groups, led by President Obama, filed briefs defending affirmative action.

Against that backdrop, this past Sunday’s major New York Times feature, “The Liberals Against Affirmative Action,” is especially strange.

While conceding that “most prominent liberals,” civil rights leaders and the President do actually back affirmative action, the article by the Times’ Washington bureau chief reports that some “left-leaning legal scholars” now “find themselves in the unusual position of seeing upsides in another potential liberal defeat in Chief Justice John G. Roberts Jr.’s court.”

That’s a big claim.  The theory here is that (1) a conservative rejection of today’s affirmative action would lead to (2) a policy focusing more on class which (3) some liberals will welcome as an alternative to today’s focus on race.  Each of these arguments is flawed in important ways.

Let’s start at the end, with the prediction. If Justice Roberts hands down another “liberal defeat” on civil rights this term, we can all count up how many liberals celebrate.  The article only quotes one candidate, Georgetown law professor Sheryll Cashin, who says a negative ruling will be “a crisis” for diversity advocates, but the “good thing about that” is a potential re-evaluation of public policy.

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