The Importance of Looking to Government Motive and Purpose:
Why Intent Matters Both In the University of Michigan Affirmative Actions Cases, And Iraq War Arguments

By VIKRAM AMAR AND ALAN BROWNSTEIN

Friday, May. 02, 2003

For the past few months, the headlines have been dominated, of course, by President Bush's decision to go to war with Iraq and the subsequent military campaign. But one domestic news story was sufficiently important that it garnered significant coverage for a few days.

That story was the story of the Supreme Court's oral arguments, a few weeks back, in the University of Michigan cases. The cases are highly significant, for the Court's opinion resolving them will have a nationwide impact, determining whether commonly-used affirmative action programs in college and graduate school admissions can survive constitutional scrutiny, or must be altered or junked.

This nationwide effect has meant that the Michigan cases have been covered avidly by the press even despite the war. Indeed, the day after the Court's arguments, the New York Times featured the Michigan cases in its main headline on the front page. It was the first time a non-war story had led the news since the military conflict began.

There are some thematic links between these two seemingly unrelated news events, of course. As Noah Leavitt argued in a column last week, the vision of diversity at stake in the Michigan cases may be relevant to the vision of diversity that serves as the basis for building a viable political structure in Iraq. And the Court's decision in the Michigan cases may have implications, as well, for affirmative action in the military.

In addition, we think there is an important and profound common question of principle that underlies debate about both the war and affirmative action In both the Iraq war setting and in the affirmative action setting, opponents of government policy ground their arguments on claims that certain kinds of actions are equivalent to each other - from a moral perspective, a legal perspective, or both. That raises a larger issues: When are these arguments of equivalence persuasive?

Our answer is, in part, this one: Less often than it may seem. In both the contexts of the Michigan cases and the war on Iraq, some of the equivalences that have been suggested are false. Worse, they are misguided, and distort reality. Such false equivalences try to conflate actions that we think should be recognized as fundamentally different in their purpose and effect.

In this column, we will explain which equivalences - in both contexts - we find unpersuasive, and also argue for a careful consideration, in all moral and legal questions, not just of the form of actions, but also of their purpose and effect.

The Iraq War, and Claims of Moral and Legal Equivalence

Consider, first, the criticisms of the war that are grounded on ideas of moral and legal equivalence. There are many reasons why reasonable Americans harbor doubts and concerns about the war that is winding down. But it is just plain wrong to argue - as many critics have, here and abroad - that because President Bush may be violating international law, he is acting comparably to Saddam Hussein, who has also flouted United Nations resolutions.

There is simply no basis for equating American actions in this war with the conduct of the Iraqi regime, for three glaring reasons.

First, while this war, like all wars, will result in the death of innocents, American and British forces strive to minimize civilian casualties. The Iraqi government had no such scruples and many of its actions, past and present, serve to maximize injury to non-combatants.

Second, the goal of American policy is a democratic regime in Iraq. The former Iraqi government hoped to maintain an oppressive dictatorship.

Third, the United States may be deviating from international norms in some respects in invading Iraq. But it is doing so based on its claim that current events require a limited change in legal doctrine. Iraq rejected any commitment to international law when it invaded Kuwait. Moreover, it has consistently defied U.N. mandates over the last twelve years.

Put simply, there is no moral or legal equivalence here. Suggesting there is shows only the arguer's myopia - the failure to look at purpose, intent, or effect, when a parallel is drawn. In this case, oversimplification - looking at one parallel but ignoring huge dissimilarities - leads to gross injustice. Whatever one may think of President Bush, he is not the equivalent of Saddam Hussein.

The Michigan Cases, and Claims of Moral and Legal Equivalence

What does this have to do with the debate about affirmative action? Everything, it turns out.

Of course, on one level, there is a gross disparity between the scope and nature of these controversies. The costs and injuries resulting from affirmative action programs cannot be compared to those of war, and we of course are not suggesting otherwise. No one dies because she is denied admission to the University of Michigan.

Still, there is a common denominator here. Many critics of affirmative action also are trying to draw a normative and constitutional equivalence where none exists - and in doing so, they too ignore purpose, intent, and effect. Their claimed equivalence is between racist laws - such as Jim Crow laws - and diversity-promoting laws that take race into account, such as affirmative action laws.

Supreme Court Justice Clarence Thomas is only one of the many opponents of affirmative actions who have taken this spurious position. In his concurring opinion in the famous Adarand case, Justice Thomas made it clear that he was, indeed, drawing this equivalence, and that he did not consider intent or purpose relevant. He made the point as follows:

I believe there is a "moral [and] constitutional equivalence" between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. . . . It is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. . . . That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.

Justice Thomas is right that some parallels can be drawn - but wrong to choose these parallels, and ignore dissimilarities, to construct a purported equivalence.

It is true that affirmative action programs involve race-specific decisions, as do acts of invidious discrimination like the segregation that persisted before Brown v. Board of Education.

It is also true that as a result of admission policies such as those that are being challenged at Michigan, some individuals will lose benefits they would otherwise be entitled to because of their race - and invidious discrimination can have the same consequence. (For instance, blacks, before Brown, could not exercise their right to equal protection in public schools.)

It is also arguably true that, in a perfect world, government should never take race into account in allocating benefits or burdens. Affirmative action programs thus do deviate from an ideal aspiration articulated by some that "Our Constitution [be] color blind."

But the reason a government takes race into account in affirmative action programs is very different from the purpose for which it engages in invidious discrimination. And that makes all the difference in the world - and destroys the equivalence Justice Thomas is suggesting.

Here are a few of the ways in which the suggested equivalence fails, once one takes purpose and intent into account:

First, affirmative action programs are adopted to promote equality. Acts of invidious discrimination have no purpose other than the subordination of a racial group based on prejudice and hatred.

Second, there is no internal check on the harm caused by invidious discrimination because bias blinds the majority from recognizing the humanity of the victimized group. In contrast, affirmative action programs are limited in scope precisely because the proponents of such programs recognize the burden imposed on those who bear the program's costs (and this includes the residual stigmatic consequences on beneficiaries of the program.).

Third, invidious discrimination does not simply impose burdens on the disfavored class. It deliberately breaks their spirit and dignity. Affirmative action programs do not inflict such injuries.

Finally, affirmative action may be inconsistent with the general principle of color blind decision making by government. But this is a recognized exception to the rule - an inconsistency grounded on the unique conditions of our history of past discrimination. In contrast, race-based decision making is the normal state of affairs in a regime grounded on racism.

Put simply, why government does what it does bears on the moral and legal permissibility of its actions. Government's reasons, purposes and motivations matter, just as an individual's state of mind matters in determining his culpability under criminal or tort law principles.

What Justice Thomas and others who embrace his arguments miss is this: In the context of affirmative action, as in other areas of law, a good motive isn't being urged in order to create an exception to constitutional principle; instead, motive inquiry helps us decide the contours of the constitutional principle itself.

The Importance of Looking to Not Only Legal Form, But Also Purpose and Intent

When it comes to something like war, we intuitively understand why moral equivalence arguments are facile - we understand that George Bush is quite different from Saddam Hussein because his goals are different, and his actions will be limited by those quite different goals. But for some reason, that lesson about the pitfalls of moral equivalence arguments seems to go unheeded in debates over affirmative action.

We think the analogy between inaccurate criticism of the war and misguided criticism of affirmative action programs is clear. In each context, attempts to find moral equivalence where none exists substitute short-term rhetoric for persuasive argument and analysis. In each context, government purpose and intent are entirely ignored in favor of a focus on a formal - and misleading - parallel.

Taking race into account to further racial equality may seem counterintuitive on a superficial level - but only in the same way that one may argue superficially that a nation cannot wage war to create a more just, democratic and peaceful world.

In the real world, for most people whose minds are not clouded by ideology, George Bush is not Saddam Hussein, and affirmative action is not racism.


Alan Brownstein is a professor at U.C. Davis Law School.

Akhil Reed Amar is on vacation this week.

Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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