Legal Commentary

Preferences for White Males and the Diversity Rationale for Affirmative Action

By Ilya Somin

A recent effort to establish a scholarship for white males at Texas State University has predictably stirred controversy:

According to the Austin American-Statesman, a ?whites only? scholarship is being offered at Texas State University.

The Former Majority Association for Equality ? a nonprofit group ? is offering five $1,000 scholarships exclusively to white male students....

Student Colby Bohannan, the president of the group, said, ?I?m not sure white males are the majority anymore,? adding, ?There?s a scholarship out there for just about any demographic, except this one. We realize it?s for good reason ? this is a touchy subject.?

It?s not actually clear whether this scholarship is really confined to white males. The above-linked article says that anyone who is at least ?25 percent Caucasian? is eligible, which includes numerous blacks, Asians, Hispanics, mixed-race people and others. Tiger Woods and Derek Jeter would qualify, for example.

The scholarship does, however, raise the question of whether the diversity rationale for affirmative action might sometimes justify preferences for white males. As the Supreme Court explained in the Grutter case, the diversity rationale holds that preferences for African-Americans and Hispanics are necessary in order to ensure that whites and others get the educational benefit of being exposed to the unique perspectives these groups have to offer. If there is not a ?critical mass? of minority group members at a given university, the educational benefits of that group?s presence might not be realized, because other students won?t have enough exposure to the group?s members.

At some schools, however, such as historically black colleges, there might not be a ?critical mass? of white students, and the majority group at that school might therefore lose the benefit of being exposed to the ?white? perspective. In the 1990s, at least one historically black college did in fact create white-only scholarships that were later challenged in court by black students.

Even if there is a critical mass of whites taken as a whole, there might not be a critical mass of individual subgroups of whites, such as immigrants from Sweden, Italy, or Russia. Each of these groups has its own unique culture, and exposure to it might have educational value for other students. For example, as far as I know, I was the only Russian immigrant in my law school class. Even if there were one or two others I didn?t know about, that still wouldn?t be enough for a ?critical mass? under the University of Michigan Law School program upheld in Grutter.

As I have previously pointed out, the diversity rationale can justify preferences for a wide variety of groups, white and otherwise, while also justifying discrimination against ?overrepresented? groups such as Chinese and Japanese-Americans that have been the victims of severe state-sponsored discrimination in the past. For this reason, among others, I am opposed to the diversity rationale for affirmative action, but am more sympathetic to the compensatory justice rationale, which would confine preferences to groups that have been the victims of large-scale discrimination in the past. The compensatory justice rationale is not without its own shortcomings. But at least it doesn?t justify the use of racial and ethnic preferences for almost every conceivable group.

Full post as published by The Volokh Conspiracy on March 02, 2011 (boomark / email).