| II. AFFIRMATIVE ACTION: THE GENERAL DEBATE | |
| II. A. The Case for Affirmative Action | |
| II. A. 1. Affirmative Action Remedies Racial Discrimination | |
| [1] | White Supremacy stands for the proposition that people of color are somehow different and inferior; therefore, they do not belong as equals in the cultural, social, and political company of Whites7. This belief, unfortunately ingrained in American history, has had enormous consequences for all people of color. White Supremacy as a latent belief is widespread; as an explicit ideology, it is reemerging in separatist militia groups as well as on the New York Times bestseller lists.8 |
| [2] | A track race metaphor, invoked by the late President Lyndon Johnson in his historic affirmative action address, provides insight into racism's harm. Living in an unabashedly racist society meant that many of our parents, grandparents, and great-grandparents were not allowed to run a fair race. Racism raised high hurdles making it impossible for otherwise "equal" runners to compete. Thus, when they passed the baton to the next generation, they did so running with less speed, having covered a shorter distance, and having less stamina than they would have had in a non-racist society. The fact that runners today might compete on more equal "footing" does nothing to change this historical fact. |
| [3] | Accordingly, for many people of color, racism has decreased the amount and value of economic, social, and cultural capital inherited from our ancestors. Not only did we receive less material wealth, we also received less "insider knowledge" and fewer social contacts so instrumental to one's educational and professional advancement. |
| [4] | As one concrete example, consider the legacy of racial discrimination by the Federal Housing Administration ("FHA"). The 1934 Federal Housing Act made purchases of homes possible for millions of Americans. But the FHA was not colorblind. It believed that non-White families would decrease property values in White neighborhoods9 and thus "channeled almost all of the loan money toward whites and away from communities of color."10 As such, between 1946 and 1959, less than 2 percent of all houses financed with FHA backing were purchased by African Americans11. This not only cemented racial segregation, it also ensured that Whites would be disproportionately advantaged by post-war suburban home ownership, "one of the most successful generators of wealth in American history."12 |
| [5] | This sort of unfairness, compounded generation after generation, has left racial minority groups with less wealth, fewer social services, and cultural resources than they would have had otherwise13. And as President Johnson put it: "You do not take a person hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair."14 |
| [6] | Racism coursing through the generations has also cut derogatory stereotypes into the bedrock of American culture. While different for each race and fluid over time and locale, these stereotypes have variously portrayed us as stupid, lazy, ineloquent; uncouth, violent, bestial; immoral, evil, irredeemable; dishonest, unfair, sneaky15. Although most Americans publicly reject these racist generalizations, none of us, whatever our race, can claim complete immunity to stereotypical thinking16. Furthermore, prejudice can work its way into social institutions and cultural practices in ways difficult to notice, much less root out. It should therefore come as no surprise to find discrimination from the most virulent antipathy, to willful ignorance, to selective indifference in all walks of life. |
| [7] | In a startling example, ABC's "PrimeTime Live" news magazine recently used two professionally trained "testers" — one Black, one White — to see whether "equality of opportunity" exists. The two men, trained to be identical in all relevant aspects save race, exposed a disturbing pattern of racism throughout their two-week experiment. While the White man was greeted warmly and encouraged at an employment agency, the African American tester was lectured on laziness and drug use. In a record store, the White tester was left alone to browse, while the Black man was tailed by an employee fearful of shoplifting. An apartment building manager gave the White tester keys to a rental, while the African American tester was told by the same manager that all apartments had already been rented17. |
| [8] | One might suppose that anti-discrimination laws, passed during the Civil Rights Era, would have put an end to all this racism. But they have not, in part because these laws are especially difficult to enforce: A "smoking gun" is rarely found because naked prejudice is kept safely hidden. Also, anti-discrimination laws require victims of racial discrimination to face protracted litigation, using personal and societal resources, to reach only uncertain end. |
| [9] | Instead of resigning ourselves to under-enforcement of anti-discrimination laws, we can support affirmative action. By "affirmative action," we refer to a broad array of race-, ethnicity-, and gender-conscious programs, enacted by the government and private sector, voluntarily or by court order, to promote equality of opportunity and racial diversity. It includes outreach programs, targeted at specific groups, to notify them of employment, education, and contracting opportunities. It also includes programs that favor among similar candidates, who satisfy minimum qualifications members of historically underrepresented groups. These programs act as a small counterweight to the various discriminations sometimes purposeful, sometimes negligent that people of color face daily, throughout their lives. They provide a rough and meager remedy for the felt impact of such unfair treatment, which for some reach back for generations. |
| [10] | Those who believe that the recompense is too large should ask themselves these questions. First, even if you are individually innocent of any racial discrimination, do you still enjoy its illicit fruit? After all, discrimination (by others) has shrunk your pool of competitors for admissions, public contracting, and jobs18. Second, for White Americans19, would you, if given the chance, voluntarily give up Whiteness, become a person of color, accept all the injustices associated therewith, in exchange for the chance to participate in the piecemeal remedy of affirmative action programs? One might put the same question to APAs. Would you accept the racism faced by Americans who are Black, Latina/o, or Native American, in exchange for affirmative action programs meant for their benefit? |
II.A.2. Affirmative Action Creates A Better America | |
| [1] | Besides counteracting racism, affirmative action moves us toward a more just society that benefits all Americans. It does so by increasing social interaction among people of different races, cultures, and backgrounds. Increased contact in the school and workplace, among diverse people interacting with basic respect and common goals, is essential especially in a world where "hypersegregation" 20 persists. |
| [2] | For instance, consider how affirmative action operates in the university. Affirmative action allows students of different races and backgrounds to rub shoulders, share meals, debate issues in an open-minded, intellectual community where learning takes place not only inside the lecture hall, but out, not only from books, but from classmates. It "allows for social interaction in an otherwise [racially] segregated world, which in turn allows us to break down our misconceptions and prejudices."21 To be sure, there are campuses where students feel comfortable sticking only to their own "kind." And without question, more could be done to encourage personal interaction across various social cliques. But the mere fact that more could be done in no way denies the tangible benefits already produced by affirmative action. |
| [3] | Affirmative action also moderates outdated stereotypes by helping racial minorities achieve non-stereotypical positions of leadership and status.22 Seeing people of color in such unexpected positions an APA as law professor, not engineer jars all of us, regardless of race, out of old habits of thought and expectation. |
| [4] | Besides decreasing racial stereotypes, affirmative action produces other benefits. In the classroom, it increases the variety of life experiences, which in turn enlivens discussion and deepens analysis. This assertion is not based on any simplistic assumptions that all minorities do think or should think alike. Rather, as explained by Assistant Attorney General Walter Dellinger, it is based on the "common sense proposition that in the aggregate, increasing the diversity of the student body is bound to make a difference in the array of perspectives communicated at a university."23 The same is true for faculty. Race continues to matter in real life, especially for racial minorities, and it is this experience that teaches valuable lessons about race, racism, and race relations in contemporary America.24 |
| [5] | Affirmative action also produces benefits outside of educational settings. In today's workplace, racially diverse co-workers chat at the water cooler. Earlier, they did not. Even if they are squabbling with each other, they are at least talking to each other, face to face. Informal interactions like this, perfectly harmonious or not, enable us to see each other as fellow human beings, with common fears, faults, and aspirations. |
| [6] | Affirmative action not only improves workplaces by furthering interaction and understanding, it also improves the work product or quality of services. Consider the value of a diversified police force. In the ideal world, the racial diversity of a law enforcement agency would have no bearing on maintaining peace and public safety. But in the real world, especially when the relationship between police and the community they serve is adversarial, racially diversifying the ranks may bolster law enforcement's effectiveness. |
| [7] | Some argue that such diversification caters to racist preferences. Crediting community preferences for a diversified police force is no different, they insist, from a restaurant refusing to hire an African American hostess because the clientele would prefer being greeted by a White person. This argument fundamentally mistakes racism. In particular, it ignores morally significant differences in the origin and social meaning of these preferences. |
| [8] | Inner-city communities, with a lengthy history of police abuse, might prefer a police force more reflective of the community's racial make-up because such a force, on the whole, will be less likely to wield its power in racist ways. Moreover, the social meaning of an integrated police force is not that Whites are members of a degraded caste, unworthy of equal treatment. By contrast, the preference for a White restaurant hostess arises from less noble or reasonable origins and, more importantly, broadcasts to racial minorities the clear message that they are less than equal.25 It is downright bizarre to think that we, as a society, lack the common sense to distinguish between such polar opposites. |
| [9] | Finally, affirmative action is a good investment in a stable future. A society plagued by tremendous distributive inequities along racial lines is not only unjust, but unstable. Consider pre-apartheid South Africa, or more close to home, the Los Angeles riots of 1992, which erupted in the context of epidemic unemployment and social despair.26 Affirmative action helps alleviate some of this distributive imbalance. |
| [10] | Admittedly, it does not do so by directly reaching those racial minorities at the lowest rungs of society. Ideally, this is a task for aggressive anti-poverty programs or possibly complementary class-based preferences. Still, race-based affirmative action helps ameliorate this imbalance by advancing the prospects of minority students, workers, and entrepreneurs. In turn, they function as role models27, increasing the self-esteem of individuals who identify with them, and contributing valuable economic and cultural resources back to their communities. Seeing a steady stream of individuals who "make it," notwithstanding their race, keeps hope alive that any American may achieve success. Affirmative action is an effort to translate this hope into reality and not to abandon it as a "dream deferred." |
II.A.3. The Costs of Affirmative Action are Acceptable | |
| [1] | We concede that there are costs, at times painful ones, to affirmative action. For instance, some marginal candidates will lose out to those helped by affirmative action. And this might seem particularly unfair, especially if the person who loses out feels no responsibility for racism, past or present. But as Professor Stanley Fish argues: |
| [2] | [I]f today's white males do not deserve the (statistically negligible) disadvantages they suffer, neither do they deserve to be the beneficiaries of the sufferings inflicted for generations on others; they didn't earn the privileges they now enjoy by birth, and any unfairness they experience is less than the unfairness that smoothes their life path irrespective of their merit.28 |
| [3] | Also, other candidates who would have lost out even without affirmative action will find it easier to blame "reverse discrimination" than themselves. For instance, consider the story of Tom Wood, co-author of the so-called "California Civil Rights Initiative," which would terminate race-conscious remedies in the State of California. He has repeatedly asserted being the victim of "reverse discrimination" when, allegedly, a woman of color took the teaching job he deserved.29 When pressed for details so that the story could be verified, Wood steadfastly declined. |
| [4] | An NBC "Dateline" investigation, however, turned up the following facts. First, "Tom Wood hadn't published anything until 15 years after he received his Ph.D."30 Second, "in the 20 years since that Ph.D., Wood ha[d] held only two university teaching positions, each one-year appointments."31 Third, of the five teaching positions Wood could have applied for, four were filled by White males and one to a "woman who was, by almost any standard, more qualified for the position than Tom Wood."32 |
| [5] | In other words, affirmative action allows the scapegoating of minorities. It also allows well-intentioned employers, who want to break bad news gently, to identify affirmative action as the culprit instead of the candidate's own lackluster qualifications. This "racial fall guy," in turn, fuels White resentment and also marks racial minorities who are successful as successful only because of affirmative action. |
| [6] | Finally, there are concerns that affirmative action will simply be inefficient. The fear is that we will not have the best qualified performing society's tasks, and thus, we will lose productivity and face higher labor costs. But this fear assumes that people of color and women benefiting from affirmative action are less qualified and that the definition of "best qualified" is incontestable. But are these assumptions correct? We answer that question next. |
II.B. The Merit Critique is Muddy | |
| [1] | Critics of affirmative action charge that taking race into account compromises our commitment to merit. Obviously, some measures of merit are relevant; however, critics are mistaken when they assert that merit is simple to understand and apply. They are also off the mark when they contend that racial diversity and merit cannot co-exist. |
II.B.1. Merit Comes in Many Forms | |
| [1] | A catchy buzzword, merit is more easily invoked than defined. Without attempting an authoritative definition, we can start with the definition of merit as "the ability to contribute to the achievement of valid institutional goals."33 Immediately, we see that no conception of merit is universal because different institutions will have different goals. For example, the Olympic Ski Team would certainly define merit differently than would, say, the Foreign Service of the State Department, although both organizations seek excellence. |
| [2] | Diverse ideas of merit exist even in more similar institutions. For example, a law school like Stanford, seeking a national student body, would define merit differently in some ways than would, say, the University of Montana, which might aim to build the state bar by recruiting in-state students likely to stay in Montana. And though both are state-sponsored schools, CUNY's focus on public interest law might make it value different qualities in prospective students than the University of Montana, though both want to produce excellent lawyers. In sum, the very notion of merit turns fundamentally on the goals and purposes of a particular institution. |
II.B.2. Merit in the University | |
| [1] | Many opponents of affirmative action have framed the debate as "affirmative action" versus "merit." They argue that affirmative action necessarily undermines merit, which harms all social institutions, particularly our colleges and universities. We find this argument simplistic. |
II.B.2.a) Academic Standards Have Risen During the Affirmative Action Era | |
| [1] | In fact, the advent of affirmative action has occurred simultaneously with an impressive rise in academic standards at elite universities. As Chancellor Chang-Lin Tien has explained: "The numbers dispel the notion that diversity has somehow sacrificed the quality of [Berkeley]. In fact, the diversity has been coupled with rising standards." Admissions officials across the nation, from Berkeley to Harvard, agree.35 |
| [2] | The social forces that have improved the quality of the student body parallel those underlying affirmative action the long-term pressure in higher education to open its doors to groups formerly excluded, such as racial minorities and women. Around World War II, universities began to make token exceptions to their admission policies, which had until then restricted the pool of potential students to the well-heeled, well-bred graduates of particular preparatory schools, and those of the "right" race, religion, and gender.36 |
| [3] | Significant gains in women and minority admissions did not occur until the 1960s, however, and only in the wake of intense pressure from the Civil Rights Movement. Affirmative action was reluctantly accepted by elite schools such as Harvard as the "bitter pill" necessary to stave off social upheaval and political instability. Prior to this time, Harvard University had excluded qualified women and racial minorities for 328 of its 358 year existence.37 This preference for White Protestant men hardly served the lofty goals of "merit," but rather sustained mediocrity for the privileged. Individual merit became a central concern when the qualifications of the "privileged" began to be questioned.38 |
II.B.2.b) Measuring Academic Ability Is Hard | |
| [1] | Affirmative action supposedly compromises merit because it admits students of color based on factors other than grade point average ("GPA") and standardized test scores. Schools rely on numerical criteria as one set of factors in admissions because they are somewhat helpful, though by no means perfect, in predicting future academic performance.39 |
| [2] | But for any particular individual, test scores may be quite misleading. Indeed, because schools weight GPAs and test scores and use scales of comparison for preparatory institution and course work, APAs can easily be disadvantaged by the manipulation of seemingly neutral factors. APAs, for example, would be disadvantaged if a university gave greater weight to the verbal portion of the SAT exam or gave no credit for non-European foreign language skills. Since universities have historically done exactly this to APAs, we should be skeptical about claims that academic merit is a scientifically measurable characteristic that can be gauged objectively. |
II.B.2.c) Grades and Test Scores Are Not Everything | |
| [1] | More importantly, no sensible admissions officer would pretend that grades and scores are the only components of merit. Reducing an individual's accomplishments and potential to a number would compel schools to ignore, say, demonstrated leadership, scholarly publications, motivation, maturity, and the use to which an education will be put, including service to neglected communities. In short, many qualifications not reflected by standardized test scores or grades may indicate that a person would be a valued member of a school community and a successful graduate. |
| [2] | Indeed, many professional school faculty will concede that doing well in school does not ensure doing well in the profession. There are countless stories of "C-" students from non-elite law schools becoming world-renowned attorneys. Conversely, there are countless "A" law students who fail miserably in the day-to-day practice of law. Recognizing this less simplistic view of merit benefits not only people of color, but everyone who can contribute to one of the school's or the profession's various goals. |
| [3] | Furthermore, a school might reasonably adopt an affirmative action plan based on the conclusion that, in some circumstances, race can be a component of merit. Many schools, for example, admit students whom they hope will become civic and community leaders. For better or worse, these communities are sometimes racially defined. A school wholly blind to race, however, would be unable to consider the fact that certain applicants may become political, spiritual, and artistic leaders of such communities. Not only would such a school be deprived of having such a person as an alumna, but that applicant would have been treated unfairly. Refusing to consider the potential suggested by an applicant's leadership skills and background would foreclose full evaluation of her merit. |
| [4] | While many concede the force of this argument, they still feel uneasy about considering race to be a part of merit. After all, race is not something one "earns." But remember, schools routinely look at characteristics that do not arise from individual initiative. Applicants blessed with extraordinary athletic or artistic abilities receive special consideration even when these abilities arise more from natural talents than individual toil. Applicants with novel backgrounds such as being raised on military bases or diplomatic missions around the globe may properly be favored regardless of whether those applicants had any say in the matter of where they lived and grew up. Accordingly, people should feel more at ease with expanding the notion of merit to include, at times, membership in a distinct social group.40 |
II.B.3. Our Commitment to "Merit" is Fickle | |
| [1] | Finally, note how those ardently committed to an unreflective merit principle ("merit equals objective test scores and grades") ignore curious exceptions without outcry. Admissions committees, for example, will take into account an applicant's "legacy" status having an alumni relative even though that fact is irrelevant to personal achievement or academic promise.41 While having rich or politically powerful parents hardly makes an applicant smarter, a person in that fortunate position can often expect preferential treatment of his admissions application.42 |
| [2] | This is not the case solely at elite private schools, such as Harvard, to which more students were admitted one year under the legacy preference than the total number of African American, Mexican American, Puerto Rican, and Native Americans in the entire class. It is also the practice of our public institutions. For example, the University of California's lobbyist in Sacramento helped children of the powerful:44 Both UCLA45 and Berkeley46 had secret but established "back channels" to aid privileged applicants. |
| [3] | But the exceptions do not end there. Consider nepotism preferential treatment on the basis of a biological happenstance which is perfectly legal in private-sector hiring. Or what about the substantial numerical boosts granted to the scores of veterans on civil service exams, regardless of whether they actually participated in combat, suffered emotional or physical injury, or are socially or economically disadvantaged?47 These exceptions should make us question our commitment to some unexamined merit principle. |
| [4] | The choice is not between "merit" and "affirmative action." More accurately, the choice is between different conceptions of merit or between competing visions of an institution. If taking race into account seems to compromise accustomed notions of merit, we must recognize that the ends achieved reducing racial prejudice, increasing racial harmony, and avoiding the resegregation of higher education are more weighty than many other ends for which the usual merit principle is sacrificed. We must also acknowledge that "conventional" notions of merit may simply mismeasure merit for universities who have less self-interested and more social-minded goals than simply mass-producing the most test-savvy and clever graduates. |
II.C. Race-Consciousness is not Racism | |
| II.C.1. Color-Blindness is not Morally Mandated | |
| [1] | In opposing affirmative action, many Americans appeal not only to an abstract merit principle, but also to a rigid color-blindness principle. They simply feel that race is morally irrelevant and should never be used in any way. To this appeal, we ask: Why precisely is race-consciousness so taboo? |
| [2] | Surely, in the past, race-consciousness was used to perpetuate an unjust caste system, such as slavery. But that has not always been the intent, effect, and meaning of race-conscious programs. For instance, after the Civil War, Congress established the Freedmen's Bureau to help recently freed slaves integrate into society.48 There, government took an expressly race-conscious measure to remedy a serious social problem. To suggest that the race-consciousness of chattel slavery and that of the Freedmen's Bureau is identical is deeply mistaken. |
| [3] | First, each program had a different intent. Slavery was intended to subordinate a whole class of human beings into an inhuman status. By contrast, the Bureau was intended to help liberate that class. For those who think that intent is irrelevant, consider our opposite reactions to killing-for-hire and killing-for-self-defense.49 Both involve killing, but the intent differs, which makes all the difference. |
| [4] | Second, regardless of intent, each program had a different impact. The concrete impact of slavery and Jim Crow was the political, cultural, and economic subjugation of an entire class of Americans. By contrast, programs like the Freedmen's Bureau did nothing to disenfranchise Whites, stigmatize them, or relegate them to a disfavored caste. |
| [5] | Third, each program had a profoundly different social meaning. In moral terms, the meaning of Jim Crow was to deny racial minorities the most basic respect as an equal. In contrast, the meaning of the Freedmen's Bureau was not to deny equal respect to those Americans excluded from such programs. Today, the exact same contrast in intent, impact, and meaning can be made between old-style discrimination on the one hand and affirmative action on the other. |
| [6] | Still, while conceding some distinction between Jim Crow and affirmative action, opponents of affirmative action argue that it is too difficult to distinguish between malign and benign race-based policies. They contend that it is wiser to be like Ulysses and bind ourselves to the mast to stave off the Sirens of race-consciousness. But this approach, alluringly heroic, ignores significant costs, namely, apathy toward continuing racism. |
II.C.2. Color-blindness is Gratuitous in an Era of Judicial Retrenchment | |
| [1] | The Supreme Court recently decided in Adarand v. Pena50 that race-conscious decisions, whether apparently malign or benign, must be evaluated under a notoriously difficult standard known as "strict scrutiny." In other words, affirmative action programs can be implemented only if the institution demonstrates a compelling interest, such as the elimination of the present effects of past racial discrimination by the institution itself or educational diversity.51 Furthermore, the institution must show that the use of racial classifications is narrowly tailored to that compelling interest. |
| [2] | Each of us disagrees with the holding in Adarand.52 In particular, we disavow how the court used the Japanese American internment to justify its conclusion.53 We also do not believe that the only valid arguments justifying affirmative action are those that the Court has identified as "compelling." Nevertheless, as controlling Supreme Court precedent, Adarand substantially restricts what type of affirmative action programs can continue to exist. |
| [3] | Despite this aggressive constitutional check against race-conscious remedies already in place, opponents of affirmative action would prohibit even those few affirmative action programs that would satisfy this most strict scrutiny. In other words, they would bar even a program narrowly tailored to a genuinely compelling interest, one that would move us toward a more just society. Such draconian measures smack of stingy self-interest. It is overkill. |