Does Epstein support affirmative action?

For anyone who is interested, here is Richard Epstein’s reply to my post about his review of Glenn Loury, followed by my reply to him. In this exchange, Professor Epstein says that he is not supporting affirmative action, and I beg to differ.

Richard Epstein writes:

My position is not for or against affirmative action as such; it is that institutions both public and private should be allowed (but never mandated) to engage in the practice for the reasons there stated. It is perfectly consistent with that position for members internal to the institution to oppose affirmative action on colorblind grounds, or to support it for reasons of diversity or rectification, or whatever. My hope is not to enshrine the program but to avoid the rhetorical escalation that arises when each side accuses the other of great moral faults. As to my own internal position, it is incurably centrist. The problem will not go away by pretending it does not exist. So I support more affirmative action than its opponents would tolerate, and less than its champions want. The issue is bridging gaps, not taking stances.

Richard A. Epstein
University of Chicago

Dear Prof. Epstein:

In your e-mail to me you write that your position “is not for or against affirmative action as such.” Reading over your article again, I respectfully cannot agree with your characterization of it. It is clear that both in tone and substance you have only positive—indeed glowing—things to say about affirmative action and you urge more of it as the solution to racial problems.

Here I’ll briefly discuss a few out of many possible examples from your article that illustrate this point.

You write:

By stressing an imperfect obligation of benevolence, classical liberalism enlists associational freedom to promote charity, good deeds, and socially responsive behavior by people with more-generous impulses. Captains of industry from John D. Rockefeller to Bill Gates got Loury’s point about social context long before he made it, in both their business and charitable activities. Private affirmative action is fully consistent with the psychological underpinnings and normative requirements of liberal individualism.

By conflating affirmative action with good charitable works you are not only saying that people should be left free to engage in affirmative action if they so choose, you are portraying affirmative action as a good and moral thing. Let me reiterate that nowhere in your article do you say anything critical of affirmative action.

Next, you write:

[Affirmative action practices] are an outgrowth of a multidimensional deliberative process that has converged on the same outcome time after time.

To quote James Kalb (at the web site we co-edit, View from the Right):

There is something odd about the line of thought. The whole point of AA is to eradicate or at least render ineffectual “deeply rooted social prejudices and stereotypes”—that is, to destroy utterly the outgrowth of a multidimensional deliberative process that has converged on the same outcome time after time. The deliberative process that has given rise to social recognition of race has in fact been much more multidimensional, convergent, enduring, and independent of political and bureaucratic pressures than the one that has given rise to AA. Indeed, AA is in substance an attempt by a more bureaucratic and politicized process to suppress a less bureaucratic and politicized one. So it seems on Epstein’s own line of thought he ought to have serious doubts about it.

To Mr. Kalb’s analysis I would add the following. The fact that you portray AA as the result of a multidimensional deliberative process, and therefore as a social good within the terms of libertarian analysis, while you miss the important fact that AA is in reality a bureaucratic attempt to suppress the results of society’s multidimensional deliberative processes (which, left to themselves, would not result in AA but in something closer to racial hierarchy and racial segregation), strongly suggests that you view AA positively.

You conclude your article as follows:

Loury should recognize that decentralized social institutions offer the greatest prospect for improving race relations. The Civil Rights Acts were important in securing the demise of Jim Crow, but those laws have long since outlived their usefulness in the regulation of private behavior in competitive markets. Now we need a return to freedom.

You say that race-blind laws have outlived their usefulness and now we should return to “freedom,” which you have defined as the freedom of private (and public) bodies to engage in affirmative action. You are not just saying these bodies should have the right to choose affirmative action. You are saying that affirmative action is “useful” and will help continue black progress.

Finally, at the end of the same e-mail to me in which you wrote, “My position is not for or against affirmative action as such,” you also wrote: “I support more affirmative action than its opponents would tolerate, and less than its champions want.” So once again, notwithstanding your protestations, you’ve made your own position crystal clear: You positively support affirmative action, not just the procedural right of people to engage in it.

Sincerely,
Lawrence Auster
New York City
Posted by Lawrence Auster at July 27, 2002 02:01 PM | Send