Haaland v. Brackeen is heading to the Supreme Court. It’s a bad case and one that tangles the argument against racial preferences. Texas shouldn’t have fought it and the Supreme Court shouldn’t have taken it. Conservatives certainly shouldn’t embrace it.
At the philosophical heart of Haaland v. Brackeen is the difference between protecting meritocracy, like removing any racial preferences for college admission, and respecting legitimate differences, like men’s and women’s sports.
Confusing the two leads to either calls for some sort of artificially mandated equality or an endless web of privileges and affirmative action.
Haaland v. Brackeen is about adoption. Specifically, laws protecting the rights of Indian tribes to see to it that children from their tribe are adopted by tribal families. Even without the history of forcibly seizing Indian children and cutting them off from their culture, this is a position that makes sense.
Children and people are not interchangeable. Christian adoption agencies have the right not to work with non-Christian families. That’s a recent case filed by a Jewish family should not stand. And, likewise, Indian families and especially family members of a child, should have the ability to raise their children within their family and their culture.
Unfortunately, Haaland v. Brackeen has been promoted as being a case of affirmative action.
The difference between telling a black student that he can get into Yale with a C+ while telling an Asian student that he needs an A+ and a white student an A-… and protecting the right of Navajo families to adopt children from their tribe is obvious.
Family is not meritocracy. We don’t hand out children to the people with the most money. The first imperative is, or should be, to keep family together. And when that fails, to maintain the larger structure of the family when possible. Children are not commodities who go to the highest bidder.
Haaland v. Brackeen is a bad case and at a time when there is a turning point against affirmative action, it risks poisoning the well and creating sympathy for it by pasting on a completely wrongheaded argument. Libertarian groups and Texas have teed up a losing case. And one that conservatives are better off not winning.
Affirmative action has clear victims. The last thing we need is to create actual sympathetic victims by undermining tribal families.
Libertarians have argued that the existing law treats children differently based on their race. It does and that’s a good thing. Just as it’s a good thing that the law treats men and women differently in some regard. We have some actual differences that are worth respecting.
Nobody should be deprived of opportunities (where it makes no sense) because of their differences. Neither should we ignore the fact that differences exist and deserve to be respected.
The Indian tribes have their own culture and heritage. They deserve to be able to pass that on to their children.
That’s not affirmative action. That’s human values.