Affirmative Action Research
Affirmative Action First published Fri Dec 28, 2001; substantive revision Wed Apr 1, 2009 owned exclusively by above web source “Affirmative action” means positive steps taken to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded - Affirmative Action Research introduction. When those steps involve preferential selection—selection on the basis of race, gender, or ethnicity—affirmative action generates intense controversy.
The development, defense, and contestation of preferential affirmative action has proceeded along two paths. One has been legal and administrative as courts, legislatures, and executive departments of government have made and applied rules requiring affirmative action. The other has been the path of public debate, where the practice of preferential treatment has spawned a vast literature, pro and con. Often enough, the two paths have failed to make adequate contact, with the public quarrels not always very securely anchored in any existing legal basis or practice.
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The ebb and flow of public controversy over affirmative action can be pictured as two spikes on a line, the first spike representing a period of passionate debate that began around 1972 and tapered off after 1980, and the second indicating a resurgence of debate in the 1990s leading up to the Supreme Court’s decision in the summer of 2003 upholding certain kinds of affirmative action. The first spike encompassed controversy about gender and racial preferences alike. This is because in the beginning affirmative action was as much about the factory, the firehouse, and the corporate suite as about the university campus.
The second spike represents a quarrel about race and ethnicity. This is because the burning issue at the turn of the twentieth-first century is about college admissions.  In admissions to selective colleges, women need no boost; African-Americans and Hispanics do.  1. In the Beginning 2. The Controversy Engaged 3. Rights and Consistency 4. Real World Affirmative Action: The Workplace 5. Real World Affirmative Action: The University 6. Equality’s Rule 7. Diversity’s Dominion 8. The Integration Argument 9. Desert Confounded, Desert Misapplied Bibliography Other Internet Resources
Related Entries 1. In the Beginning In 1972, affirmative action became an inflammatory public issue. True enough, the Civil Rights Act of 1964 already had made something called “affirmative action” a remedy federal courts could impose on violators of the Act. Likewise, after 1965 federal contractors had been subject to President Lyndon Johnson’s Executive Order 11246, requiring them to take “affirmative action” to make sure they were not discriminating. But what did this 1965 mandate amount to? The Executive Order assigned to the Secretary of Labor the job of specifying rules of implementation.
In the meantime, as the federal courts were enforcing the Civil Rights Act against discriminating companies, unions, and other institutions, the Department of Labor mounted an ad hoc attack on the construction industry by cajoling, threatening, negotiating, and generally strong-arming reluctant construction firms into a series of region-wide “plans” in which they committed themselves to numerical hiring goals. Through these contractor commitments, the Department could indirectly pressure recalcitrant labor unions, who supplied the employees at job sites.
While the occasional court case and government initiative made the news and stirred some controversy, affirmative action was pretty far down the list of public excitements until the autumn of 1972, when the Secretary of Labor’s Revised Order No. 4, fully implementing the Executive Order, landed on campus by way of directives from the Department of Health, Education, and Welfare. Its predecessor, Order No. 4, first promulgated in 1970, cast a wide net over American institutions, both public and private.
By extending to all contractors the basic apparatus of the construction industry “plans,” the Order imposed a one-size-fits-all system of “underutilization analyses,” “goals,” and “timetables” on hospitals, banks, trucking companies, steel mills, printers, airlines—indeed, on all the scores of thousands of institutions, large and small, that did business with the government, including a special set of institutions with a particularly voluble and articulate constituency, namely, American universities. At first, university administrators and faculty found the rules of Order No. murky but hardly a threat to the established order. The number of racial and ethnic minorities receiving PhDs each year and thus eligible for faculty jobs was tiny. Any mandate to increase their representation on campus would require more diligent searches by universities, to be sure, but searches fated nevertheless largely to mirror past results. The Revised Order, on the other hand, effected a change that punctured any campus complacency: it included women among the “protected classes” whose “underutilization” demanded the setting of “goals” and “timetables” for “full utilization” (Graham 1990, 413).
Unlike African-Americans and Hispanics, women were getting PhDs in substantial and growing numbers. If the affirmative action required of federal contractors was a recipe for “proportional representation,” then Revised Order No. 4 was bound to leave a large footprint on campus. Some among the professoriate exploded in a fury of opposition to the new rules, while others responded with an equally vehement defense of them.  As it happened, these events coincided with another development, namely the “public turn” in philosophy.
For several decades Anglo-American philosophy had treated moral and political questions obliquely. On the prevailing view, philosophers were suited only to do “conceptual analysis”—they could lay bare, for example, the conceptual architecture of the idea of justice, but they were not competent to suggest political principles, constitutional arrangements, or social policies that actually did justice. Philosophers might do “meta-ethics” but not “normative ethics. ” This viewed collapsed in the 1970s under the weight of two counter-blows.
First, John Rawls published in 1971 A Theory of Justice an elaborate, elegant, and inspiring defense of a normative theory of justice (Rawls 1971). Second, in the same year Philosophy & Public Affairs, with Princeton University’s impeccable pedigree, began life, a few months after Florida State’s Social Theory and Practice. These journals, along with a re-tooled older periodical, Ethics, became self-conscious platforms for socially and politically engaged philosophical writing, born out of the feeling that in time of war (the Vietnam War) and social tumult (the Civil Rights Movement, Women’s
Liberation), philosophers ought to do, not simply talk about, ethics. In 1973, Philosophy & Public Affairs published Thomas Nagel’s “Equal Treatment and Compensatory Justice” (Nagel 1973) and Judith Jarvis Thomson’s “Preferential Hiring” (Thomson 1973), and the philosophical literature on affirmative action burgeoned forth.  In contention was the nature of those “goals” and “timetables” imposed on every contractor by Revised Order No. 4. Weren’t the “goals” tantamount to “quotas,” requiring institutions to use racial or gender preferences in their selection processes?
Some answered “no” (Ezorsky 1977, 86). Properly understood, affirmative action did not require (or even permit) the use of gender or racial preferences. Others said “yes” (Goldman 1976, 182–3). Affirmative action, if it did not impose preferences outright, at least countenanced them. Among the yea-sayers, opinion divided between those who said preferences were morally permissible and those who said they were not. Within the first set, different people put forward different justifications. 2. The Controversy Engaged The essays by Thomson and Nagel defended the use of preferences but on different grounds.
Thomson endorsed job preferences for women and African-Americans as a form of compensation for their past exclusion from the academy and the workplace. Preferential policies, in her view, worked a kind of justice. Nagel, by contrast, argued that preferences might work a kind of social good, and without doing violence to justice. Institutions could for one or another good reason properly depart from standard meritocratic selection criteria because the whole system of tying economic reward to earned credentials was itself indefensible. Justice and desert lay at the heart of subsequent arguments.
Several writers took to task Thomson’s argument that preferential hiring justifiably makes up for past wrongs. Preferential hiring seen as compensation looks perverse, they contended, since it benefits individuals (African-Americans and women possessing good educational credentials) least likely harmed by past wrongs while it burdens individuals (younger white male applicants) least likely to be responsible for past wrongs (Simon 1974, 315–19; Sher 1975, 162; Sher 1979, 81–82; and Goldman 1976, 190–1).  Instead of doing justice, preferential treatment 1. iolates rights: the right of an applicant “to equal consideration” (Thomson 1973, 377; Simon 1974, 312), the right of the maximally competent to an open position (Goldman 1976, 191; Goldman 1979, 24–8), and the right of everyone to equal opportunity (Gross 1977a, 382; Gross 1978, 97), 2. confounds desert: by severing reward from a “person’s character, talents, choices and abilities” (Simon 1979, 96), by “subordinating merit, conduct, and character to race” (Eastland & Bennett 1979, 144), and by disconnecting outcomes from actual liability and damage (Gross 1978, 125–42).
Defenders of preferences were no less quick to enlist justice and desert in their cause. Mary Anne Warren, for example, argued that in a context of entrenched gender discrimination, gender preferences might improve the “overall fairness” of job selections. Justice and individual desert need not be violated. If individual men’s careers are temporarily set back because of…[job preferences given to women], the odds are good that these same men will have benefited in the past and/or will benefit in the future—not necessarily in the job competition, but in some ways—from sexist discrimination against women.
Conversely, if individual women receive apparently unearned bonuses [through preferential selection], it is highly likely that these same women will have suffered in the past and/or will suffer in the future from…sexist attitudes. (Warren 1977, 256) Likewise, James Rachels defended racial preferences as devices to neutralize unearned advantages by whites. Given the pervasiveness of racial discrimination, it is likely, he argued, that the superior credentials offered by white applicants do not reflect their greater effort, desert, or even ability.
Rather, the credentials reflect their mere luck at being born white. “Some white…[applicants] have better qualifications…only because they have not had to contend with the obstacles faced by their African-American competitors” (Rachels 1978, 162). Rachels was less confident than Warren that preferences worked uniformly accurate offsets. Reverse discrimination might do injustice to some whites; yet its absence would result in injustices to African-Americans who have been unfairly handicapped by their lesser advantages.
Rachels’ diffidence was warranted in light of the counter-responses. If racial and gender preferences for jobs (or college admissions) were supposed to neutralize unfair competitive advantages, they needed to be calibrated to fit the variety of backgrounds aspirants brought to any competition for these goods. Simply giving blanket preferences to African-Americans or women seemed much too ham-handed an approach if the point was to micro-distribute opportunities fairly (Sher 1975, 165ff). 3. Rights and Consistency To many of its critics, reverse discrimination was simply incoherent.
When “the employers and the schools favor women and blacks,” objected Lisa Newton, they commit the same injustice perpetrated by Jim Crow discrimination. “Just as the previous discrimination did, this reverse discrimination violates the public equality which defines citizenship” (Newton 1973, 310).  William Bennett and Terry Eastland likewise saw racial preferences as in some sense illogical: To count by race, to use the means of numerical equality to achieve the end of moral equality, is counterproductive, for to count by race is to deny the end by virtue of the means.
The means of race counting will not, cannot, issue in an end where race does not matter (Eastland & Bennett 1979, 149).  When Eastland and Bennett alluded to those who favored using race to get to a point where race doesn’t count, they had in mind specifically the Supreme Court’s Justice Blackmun who, in the famous 1978 Bakke case (discussed below), put his own views in just those simple terms. For Blackmun, the legitimacy of racial preferences was to be measured by how fast using them moves us toward a society where race doesn’t matter (a view developed in subtle detail by the philosopher Richard Wasserstrom in Wasserstrom 1976).
While the critics of preferences feigned to find the very idea of using race to end racism illogical and incoherent, they also fell back on principle to block Blackmun’s instrumental defense should it actually prove both reasonable and plausible. “The moral issue comes in classic form,” wrote Carl Cohen. “Terribly important objectives…appear to require impermissible means. Cohen asked, might we not wink at the Constitution this once” and allow preferences to do their good work? (Cohen 1995, 20) Neither he nor other critics thought so.
Principle must hold firm. “[I]n the distribution of benefits under the laws all racial classifications are invidious” (Cohen 1995, 52). But what, exactly, is the principle—constitutional or moral—that bars the use of race as a means to “terribly important objectives”? Alan Goldman did more than anyone in the early debate to formulate and ground a relevant principle. Using a contractualist framework, he surmised that rational contractors would choose a rule of justice requiring positions to be awarded by competence.
They would choose this rule because it instantiates a principle of equal opportunity which in turn instantiates a broad right to equal consideration of interests, this last principle springing from the basic condition of the contracting parties as rational, self-interested, and equally situated choosers. On its face, the rule of competence would seem to preclude filling positions by reference to factors like race and gender that are unrelated to competence. However, Goldman’s “rule” blocked preferences only under certain empirical conditions.
Goldman explained the derivation of the rule and its consequent limit this way: The rule for hiring the most competent was justified as part of a right to equal opportunity to succeed through socially productive effort, and on grounds of increased welfare for all members of society. Since it is justified in relation to a right to equal opportunity, and since the application of the rule may simply compound injustices when opportunities are unequal elsewhere in the system, the creation of more equal opportunities takes precedence when in conflict with the rule for awarding positions.
Thus short-run violations of the rule are justified to create a more just distribution of benefits by applying the rule itself in future years. (Goldman 1979, 164–165). In other words, if “terribly important objectives”—especially objectives having to do with equalizing opportunities in a system rife with inequality—in fact could be furthered by measured and targeted reverse discrimination, justice wouldn’t stand in the way. Goldman’s principle did not have the adamantine character Cohen and other critics sought in a bar to preferences. Where can such an unyielding principle be found?
I postpone further examination of this question until I discuss the Bakke case, below, whose split opinions constitute an extended debate on the meaning of constitutional equality. 4. Real-World Affirmative Action: The Workplace The terms of the popular debate over racial and gender preferences often mirrored the arguments philosophers and other academics were making to each other. Preference’s defenders offered many reasons to justify them, reasons having to do with compensatory or distributive justice, as well as reasons having to do with social utility (more African-Americans in the police epartment would enable it better to serve the community, more female professors in the classroom would inspire young women to greater achievements). Critics of preferences retorted by pointing to the law. And well they should, since the text of the Civil Rights Act of 1964 seemed a solid anchor even if general principle proved elusive. Title VI of the Act promised that “[n]o person…shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.  Title VII prohibited all employment practices that discriminated on the basis of race, gender, religion, or national origin.  However, unlike Title VI, Title VII went on to spell out some exceptions. Under special circumstances, the Title permitted the use of gender, religion, and national origin as legitimate bases for employer selection. But it made no such exception for race. While being a woman or being a Roman Catholic could sometimes count as a legitimate occupational qualification, being black could not.
In face of the plain language of Titles VI and VII, how did preferential hiring and promotion ever arise in the first place? How could they be justified legally? Part of the answer lay in the meaning of “discrimination. ” The Civil Rights Act did not define the term. The federal courts had to do that job themselves, and the cases before them drove the definition in a particular direction. Many factories and businesses prior to 1964, especially in the South, had in place facially discriminatory policies and rules.
For example, a company’s policy might have openly relegated African-Americans to the maintenance department and channeled whites into operations, sales, and management departments, where the pay and opportunities for advancement were far better. If, after passage of the Civil Rights Act, the company willingly abandoned its facially segregative policy, it could still carry forward the effects of its past segregation through other already-existing facially neutral rules.
A company policy, say, that required workers to give up their seniority in one department if they transferred to another would have locked in place older African-American maintenance workers as effectively as the company’s prior segregative rule that made them ineligible to transfer at all. Consequently, courts began striking down facially neutral rules that carried through the effects of an employer’s past discrimination, regardless of the original intent or provenance of the rules. “Intent” was effectively decoupled from “discrimination. In 1971, the Supreme Court ratified this process, giving in the Griggs decision the following construction of Title VII: The objective of Congress in the enactment of Title VII…was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to exclude on the basis of racial or other impermissible classification.  In a few short paragraphs the Court advanced from proscribing practices that froze in place the effects of a firm’s own past discrimination to proscribing practices that carried through the effects of past discrimination generally. The Court characterized statutory discrimination as any exclusionary practice not necessary to an institution’s activities.
Since many practices in most institutions were likely to be exclusionary, rejecting minorities and women in greater proportion than white men, all institutions needed to reassess the full range of their practices to look for, and correct, discriminatory effect. Against this backdrop, the generic idea of affirmative action took form: Each institution should effectively monitor its practices for exclusionary effect and revise those that cannot be defended as “necessary” to doing business.
In order to make its monitoring and revising effective, an institution ought to predict, as best it can, how many minorities and women it would select over time, were it successfully nondiscriminating. These predictions constitute the institution’s affirmative action “goals,” and failure to meet the goals signals to the institution (and to the government) that it needs to revisit its efforts at eliminating exclusionary practices. There may still remain practices that ought to be modified or eliminated. 11] The point of such affirmative action: to induce change in institutions so that they could comply with the nondiscrimination mandate of the Civil Rights Act. However, suppose this self-monitoring and revising fell short? In early litigation under the Civil Rights Act, courts concluded that some institutions, because of their past exclusionary histories and continuing failure to find qualified women or minorities, needed stronger medicine.
Courts ordered these institutions to adopt “quotas,” to take in specific numbers of formerly excluded groups on the assumption that once these new workers were securely lodged in place, the institutions would adapt to this new reality.  Throughout the 1970s, courts and government enforcement agencies extended this idea across the board, requiring a wide range of firms and organizations—from AT to the Alabama Highway Patrol—temporarily to select by the numbers. In all these cases, the use of preferences was tied to a single purpose: to prevent ongoing and future discrimination.
Courts carved out this justification for preferences not through caprice but through necessity. They found themselves confronted with a practical dilemma that Congress had never envisaged and thus never addressed when it wrote the Civil Rights Act. The dilemma was this: courts could impose racial preferences to change foot-dragging or inept defendants (and by doing so apparently transgress the plain prohibition in Title VII) or they could order less onerous steps they knew would be ineffective, thus letting discrimination continue (and by doing so violate their duty under Title VII).
Reasonably enough, the federal courts resolved this dilemma by appeal to the broad purposes of the Civil Rights Act and justified racial preferences where needed to prevent ongoing and future discrimination.  Thus, preferential affirmative action in the workplace served the same rationale as the non-preferential sort. Its purpose was not to compensate for past wrongs, offset unfair advantage, appropriately reward the deserving, or yield a variety of social goods; its purpose was to change institutions so they could comply with the nondiscrimination mandate of the Civil Rights Act. . Real-World Affirmative Action: The University In the 1970s, while campuses were embroiled in debate about how to increase African-Americans and women on the faculty, universities were also putting into effect schemes to increase minority presence within the student body. Very selective universities, in particular, needed new initiatives because only a handful of African-American and Hispanic high school students possessed test scores and grades good enough to make them eligible for admission.
These institutions faced a choice: retain their admissions criteria unchanged and live with the upshot—hardly any African-Americans and Hispanics on campus—or fiddle with their criteria to get a more substantial representation. Most elected the second path. The Medical School of the University of California at Davis was typical. It reserved sixteen of the one hundred slots in its entering classes for minorities.
In 1973 and again in 1974, Allan Bakke, a white applicant, was denied admission although his test scores and grades were better than most or all of those admitted through the special program. He sued. In 1977, his case, Regents of the University of California v. Bakke, reached the Supreme Court. The Court rendered its decision a year later.  An attentive reader of Title VI of the Civil Rights Act might have thought this case was an easy call. So, too, thought four justices on the Supreme Court, who voted to order Bakke admitted to the Medical School.
Led by Justice Stevens, they saw the racially segregated, two-track scheme at the Medical School (a recipient of federal funds) as a clear violation of the plain language of the Title. Four other members of the Court, led by Justice Brennan, wanted very keenly to save the Medical School program. To find a more attractive terrain for doing battle, they made an end-run around Title VI, arguing that, whatever its language, it had no independent meaning itself. It meant in regard to race only what the Constitution meant. 15] Thus, instead of having to parse the stingy and unyielding language of Title VI (“no person shall be subjected to…on the ground of race”), the Brennan group could turn their creative energies to interpreting the broad and vague language of the Fourteenth Amendment (“no person shall be denied the equal protection of the laws”), which provided much more wiggle-room for justifying racial preferences. The Brennan group persuaded one other member, Justice Powell, to join them in their view of Title VI. But Powell didn’t agree with their view of the Constitution.
He argued that the Medical School’s policy was unconstitutional and voted that Bakke must be admitted. His vote, added to the four votes of the Stevens group, meant that Allan Bakke won his case and that Powell got to write the opinion of the Court. The Brennan strategy didn’t reap the fruit it intended. Against the leanings of the Brennan group, who would distinguish between “benign” and “malign” uses of race and deal more leniently with the former, Powell insisted that the Fourteenth Amendment’s promise of “equal protection of the law” must mean the same thing for all, black and white alike.
To paraphrase Powell: The Constitution can tolerate no “two-class” theory of equal protection. There is no principled basis for deciding between classes that deserve special judicial attention and those that don’t. To think otherwise would involve the Court in making all kinds of “political” decisions it is not competent to make. In expounding the Constitution, the Court’s role is to discern “principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the pragmatic political judgments of a particular time and place.  What, then, was the practical meaning of a “sufficiently absolute” rendering of the principle of equal protection? It was this: when the decisions of state agents “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.  Powell, with this standard in hand, then turned to look at the four reasons the Medical School offered for its special program: (i) to reduce “the historic deficit of traditionally disfavored minorities in medical schools and the medical profession;” (ii) to counter “the effects of societal discrimination;” (iii) to increase “the number of physicians who will practice in communities currently underserved;” and (iv) to obtain “the educational benefits that flow from an ethnically diverse student body.  Did any or all of them specify a compelling governmental interest? Did they necessitate use of racial preferences? As to the first reason, Powell dismissed it out of hand. If [the School’s] purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.
As to the second reason, Powell allowed it more force. A state has a legitimate interest in ameliorating the effects of past discrimination. Even so, contended Powell, the Court, has never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.  And the Medical School does not purport to have made, and is in no position to make, such findings.
Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality. …[I]solated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria.  As to the third reason, Powell found it, too, insufficient. The Medical School provided no evidence that the best way it could contribute to increased medical services to underserved communities was to employ a racially preferential admissions scheme.
Indeed, the Medical School provided no evidence that its scheme would result in any benefits at all to such communities.  This left the fourth reason. Here Powell found merit. A university’s interest in a diverse student body is legitimated by the First Amendment’s implied protection of academic freedom. This constitutional halo makes the interest “compelling. ” However, the Medical School’s use of a racial and ethnic classification scheme was not “precisely tailored” to effect the School’s interest in diversity, argued Powell.
The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. [The Medical School’s] special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.  The diversity which provides an educational atmosphere “conducive to speculation, experiment and creation” includes a nearly endless range of experiences, talents, and attributes that students might bring to campus.
In reducing diversity to racial and ethnic quotas, the Medical School wholly misconceived this important educational interest. In sum, although the last of the Medical School’s four reasons encompassed a “compelling governmental interest,” the School’s special admissions program was not necessary to effect the interest. The special admissions program was unconstitutional. So concluded Justice Powell. 6. Equality’s Rule This was a conclusion Justice Brennan tried vigorously to forestall. Brennan agreed with Powell that “equal protection” must mean the same thing—that is, emain one rule—whether applied to blacks or whites. But the same rule applied to different circumstances need not yield the same results. Racial preferences created for different reasons and producing different outcomes need not all be judged in the same harsh, virtually fatal, manner. This point was the crux of Brennan’s defense of the Medical School’s policy. Powell thought there was no principled way to distinguish “benign” from “malign” discrimination, but Brennan insisted there was. He argued that if the Court looked carefully at its past cases striking down Jim Crow laws, it would see the principle at work.
What the Court found wrong in Jim Crow was that it served no purpose except to mark out and stigmatize one group of people as inferior. The “cardinal principle” operating in the Court’s decisions condemned racial classifications “drawn on the presumption that one race is inferior to another” or that “put the weight of government behind racial hatred and separation. ” Brennan agreed with Powell that no public racial classification motivated by racial animus, no classification whose purpose is to stigmatize people with the “badge of inferiority,” could withstand judicial scrutiny.
However, the Medical School’s policy, even if ill-advised or mistaken, reflected a public purpose far different from that found in Jim Crow. The policy ought not be treated as though it were cut from the same cloth. Brennan granted that if a state adopted a racial classification for the purpose of humiliating whites, or stigmatizing Allan Bakke as inferior and confining him to second-class citizenship, that classification would be as odious as Jim Crow. But the Medical School’s policy had neither this purpose nor this effect.
Allan Bakke may have been upset and resentful at losing out under the special plan, but he wasn’t “in any sense stamped as an inferior by the Medical School’s rejection of him. ” Nor did his loss constitute a “pervasive injury,” in the sense that wherever he went he would be treated as a “second-class citizen” because of his color.  In short, argued Brennan, the principle embedded in the Equal Protection Clause should be viewed as an anti-caste principle, a principle that uniformly and consistently rejects all public law whose purpose is to subject people to an inferior and degraded station in life, whether they are black or white. 25] Of course, given the asymmetrical position of whites and blacks in our country, we are not likely to encounter laws that try to stigmatize whites as an inferior caste (much less succeed at it). But this merely shows that a principle applied to different circumstances produces different results. Because the Medical School’s program sought to undo the effects of a racial caste system long-enduring in America, it represented a purpose of great social importance and should not be found Constitutionally infirm: so maintained Brennan. 26] Justice Powell never successfully engaged this way of reading “constitutional equality. ” His insistence on clear, plain, unitary, absolute principle did not cut against the Brennan view. The issue between Powell and Brennan was not the consistency and stringency of the principle but its content. If the Constitution says, “The state cannot deliberately burden someone by race if its purpose is to create or maintain caste,” then constitutional law doesn’t block any of the Medical School’s justifications. 27] If we turn away from exegesis of the Constitution, are we likely to find in political theory itself any principle of equality implying that every use of racial preferences in every circumstance works an intolerable injustice? There is reason to think not. To see why, consider John Rawls’ theory of justice-as-fairness. For our purposes, what is striking about the theory is the division of labor it embraces. Its very broadest principles of liberty and equality are themselves unable to single out proper micro-allocations of social benefits and burdens.
This is not a defect; this is their nature. What they can do is structure roles and institutions which then create the social and legal machinery for assigning benefits and burdens. Rawls’ principles oblige a constitution to protect equality of citizenship but leaves most other matters to legislative judgment. Thus, law that in form and in fact makes some people “second-class citizens” would be unjust, clearly, but this limitation doesn’t bar government from asking people to bear unequal burdens for the common good, not even unequal burdens premised on race or ethnicity.
Nor does Rawls’ principle of fair equality of opportunity block such burdens, either, for, while ordinarily discouraging selection based on race or ethnicity, it can itself be limited in the name of achieving greater equality of opportunity (the point noted by Goldman). Will looking farther afield yield an understanding of general equality adamantly inhospitable to every use of preferences? The prospects seem dim. As Georgia Warnke has recently argued (1998), any very general notion of equality can be employed as much to defend affirmative action (and the social inclusion it effects) as to ondemn it (and the racial non-neutrality it involves). The challenge here is well-illustrated by Carl Cohen’s most recent effort, in a debate with James Sterba, to extract a strict prohibition on racial preferences from the Aristotelian principle that “equals should be treated equally” (Cohen & Sterba 2003, 23). This principle, urges Cohen, “certainly entails at least this: It is wrong, always and everywhere, to give special advantage to any group simply on the basis of physical characteristics that have no relevance to the award given or the burden imposed” (Cohen & Sterba 2003, 25).
Whether anything interesting follows from this proposition depends on how we construe “relevance. ” Cohen admits that public policy may rightly treat some people differently because of their physical characteristics. For example, the state might offer special assistance to the old or disabled. As it happens, this example suggests that the “relevance” of physical differences is something independent of social policy. Age and disability are real features of persons and public policy simply tracks them.
However, the difference that differences make is not something itself given by nature; it is determined by public purposes. Age and disability are made “relevant” in this manner—in the one case, by the purpose of assuring that people do not have to live in poverty when they can no longer work; in the other case, by the purpose of assuring that people are not foreclosed from developing and marketing their talents by impediments in the (largely constructed) physical environment. Purpose determines relevancy, and this is true whether or not the relevant differences are physical.
For example, if the nation thinks the public interest is served by maintaining a domestic sugar industry through subsidies, then a Michigan farmer who grows sugar beets is relevantly different from his neighbor across the road who grows tomatoes. If the nation thinks a modest program of redistributing income is legitimate, then it uses a social security payout formula that gives disproportionate return to low wage-earners over high wage-earners. If the nation thinks it desirable to change white institutions so that they are less uniformly white, that purpose links skin color to recruitment.
Because the Aristotelian principle by itself doesn’t rule out racial preferences (since blacks and whites may be relevantly different with respect to certain legitimate public purposes), it is not surprising that Cohen also invokes a substantive conception of equality: “All members of humankind are equally ends in themselves, all have equal dignity—and therefore all are entitled to equal respect from the community and its laws” (Cohen & Sterba 2003, 24). This principle, however, brings us back to the interpretive questions about “equal protection of the laws” played out in the Powell-Brennan exchange in Bakke.
By Justice Brennan’s lights, Allen Bakke’s basic dignity was not violated. The Medical School’s two-track policy that resulted in Bakke’s rejection did not, by intent or effect, stigmatize him as inferior, or mark him off as a member of a despised caste, or turn him into a second-class citizen. Bakke arguably had to bear a particular burden because of his race but the burden was not significantly different objectively from others that public policy might have thrown his way.
If the Medical School had reserved sixteen of its seats for applicants from economically deprived backgrounds, no one would have suggested that it had violated the equal protection clause of the Fourteenth Amendment. Yet under this hypothetical policy Allan Bakke could have lost out as well—lost out to low-income applicants whose college grades and MCAT scores were inferior to his own. Allen Bakke may have felt aggrieved at losing out under the Medical School’s policy of racial preferences, but it is not enough to show that those who lose out under some public scheme feel offended or disgruntled.
After all, wealthy libertarians feel outraged at being taxed to subsidize poor people, fundamentalist Christians feel marginalized because public authority won’t plaster the Ten Commandments on court house walls, and feminists take umbrage at every limitation on abortion. Cohen needs to specify a conception of dignity in which bearing unequal burdens on behalf of urgent social ends invariably amounts to an assault on dignity if the burdens happen to be assigned by race. This specification remains unfinished in his work so far. 7.
Diversity’s Dominion How, if it held the Medical School’s policy unconstitutional, did Justice Powell’s Bakke opinion become the basis upon which universities across the land enacted—or maintained—racially preferential admissions policies? If Powell had concluded with his assessment of the Medical School’s four justifications, Bakke would have left university affirmative action in a precarious situation. However, he didn’t stop there. In an earlier ruling on Bakke’s lawsuit, the California Supreme Court had forbidden the Medical
School to make any use of race or ethnicity in its admissions decisions. Powell thought this went too far. Given higher education’s protected interest in “diversity,” and given that a student’s race or ethnicity might add to diversity just in the same way that her age, work experience, family background, special talents, foreign language fluency, athletic prowess, military service, and unusual accomplishments might, Powell vacated that portion of the California Supreme Court’s order. Then he added some dicta for guidance.
If universities want to understand diversity and the role that race and ethnicity might play in achieving it, they should look to Harvard, proposed Powell, and he appended to his opinion a long statement of Harvard’s diversity program. In such a program, Powell contended, racial or ethnic background might be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. …This kind of program treats each applicant as an individual in the admissions process.
The applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications…did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have had no basis to complain of unequal treatment under the Fourteenth Amendment. 28] In these off-hand comments, universities saw a green light for pushing ahead aggressively with their affirmative action programs. Justice Powell’s basic holding could not have been plainer: any system like the Medical School’s that assessed applications along two different tracks defined by race or that used numerical racial quotas must fail constitutional muster. Yet by the mid-1980s universities across the land had in place systems of admissions and scholarships that exhibited one or both of these features.
When the University of Maryland’s Banneker scholarships—awarded only to African-American students—were held in violation of the Constitution in 1994, the house of cards forming university affirmative action began to fall. In 1996, the Court of Appeals for the Fifth Circuit struck down the University of Texas Law School’s admissions program.  In 1998, the Court of Appeals for the First Circuit struck down a Boston plan assigning students to selective high schools by race.  In 2001, two more schools saw their admissions programs invalidated by federal courts: the University of Georgia and the University of Michigan Law School. 32] In many of these cases, educational institutions were using schemes that made race something more than Justice Powell’s “plus” factor.  The Fifth Circuit Court’s ruling in Hopwood threw a cloud even over this small window for affirmative action, boldly asserting that the Bakke holding was now dead as law and that race could not be used at all in admissions. Given Justice Powell’s singular opinion, supported by no one else on the Court, and given the drift of Supreme Court decisions on racial preferences since 1978, the Hopwood court was not outlandish, if a bit presumptuous, in declaring Powell’s holding in Bakke dead.
As it happened, Powell’s opinion was far from dead. In the University of Michigan Law School case, Grutter v. Bollinger, eventually decided by the Supreme Court in June 2003, Justice Sandra Day O’Connor’s lead opinion declared: “today we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions. ” Diversity was alive after all. But how it worked its affirmative action elixir remained no clearer in 2003 than in 1978.
To see why, consider how in Grutter v. Bollinger Justice O’Connor posed the issue: The [Law School’s] policy aspires to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law class stronger than the sum of its parts. ” […] The policy does not restrict the types of diversity contributions eligible for substantial weight in the admissions process, but instead recognizes “many possible bases for diversity admissions. […] The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against. ” Now, posing the issue this way and allowing the Law School to assert a special interest in “one particular type of diversity” invites the conflation of general diversity—a diversity of opinions, experiences, backgrounds, talents, aspirations, and perspectives—with ethnic and racial diversity that Justice Powell appeared strongly to resist.
After all, the Medical School too had asserted in its defense a similar special interest. Diversity is many things insisted Powell; it cannot be reduced to one thing. But why not? This question—and Justice O’Connor’s acquiescence in the Law School’s way of framing its affirmative action goal—spotlights a crucial gap in Powell’s Bakke opinion. Diversity is many things—so many things, in fact, that institutions will think it worthwhile to concentrate on some diversity factors rather than others.
One college may emphasize admitting foreign students; another may make its mission to educate poor students; a third may specialize in getting science students who have shown unusual promise in high school. If colleges have a legally protected interest in choosing a diverse student body, why don’t they have a legally protected interest in deciding which part of the diversity spectrum to single out for special attention? If they can single out a part of the spectrum, why can’t they use a simple device like set-asides to effect their purpose? Recall Justice Powell’s principal objection to the Medical School’s set-asides.
In making the race or ethnicity of an applicant a “plus,” as in the Harvard Plan, an admissions scheme does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular African-American applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant…. This kind of program treats each applicant as an individual in the admissions process.  By contrast, Allan Bakke was not able to compete for all one hundred seats at the Medical School; sixteen were reserved for candidates not like him. It is Powell’s resistance to this reservation that underpins Justice O’Connor’s opinion in Grutter, where she observed: We find that the Law School’s admissions program bears the hallmark of a narrowly tailored plan.
As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, non-mechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups.  What vindicated the Law School in O’Connor’s eyes was its “highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. ” This “individualized consideration” is crucial; in Gratz v.
Bollinger, decided the same day as Grutter, Justice O’Connor switched sides to hold unconstitutional the undergraduate admissions process at the University of Michigan. The undergraduate admissions office operated differently than the Law School. It computed an index score for each applicant by assigning numerical points for academic factors such as high school grades, admissions test scores, quality of high school, strength of curriculum; and for nonacademic factors such as being a resident of Michigan, a child of an alumnus, a recruited athlete, or a member of “an underrepresented minority group. An applicant falling in this last category automatically received 20 points.  In O’Connor’s view, this “mechanical” procedure meant that the undergraduate admissions office did not fully take account in each application “of all factors that may contribute to student body diversity. ” But O’Connor’s conclusion here simply draws us back to the lacuna in Justice Powell’s Bakke opinion. Why should the undergraduate admissions office take account of all the factors that may contribute to student body diversity if it especially wants to select from certain parts of the diversity spectrum?
Why can’t it, like the Law School, claim a special interest in “one particular type of diversity”? Why bar the undergraduate admissions office from using an effective tool to promote its interest even if the tool is “mechanical”? In fact, the Law School’s “non-mechanical” procedure differed from the undergraduate admissions policy only on its face, not in its results. During admissions season, the Law School’s director of admissions frequently consulted the “daily reports” that “kept track of the racial and ethnic composition” of the incoming class. He did so to make sure a “critical mass” of minority students was included. 42] In short, the Law School “managed” its admissions process so that roughly 6 to 7 percent of each entering class was African-American. The undergraduate admissions procedure, with its index scores, yielded a similar outcome.  Only surface appearance distinguished the two procedures. Justice Scalia, dissenting in Grutter, called the Law School’s “holistic” admissions process “a sham,” and not without reason.  In any case, the Law School’s affirmative action program was vindicated by the Supreme Court and “diversity” securely established as its basis.
Nevertheless, diversity hardly seems the right basis. When the University of Michigan was first challenged in federal court it insisted that it had a compelling educational interest in achieving racial and ethnic diversity and put into evidence findings by one of its psychology professors, Patricia Gurin, showing that students learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting. [S]tudents who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills.  But suppose Patricia Gurin’s findings had turned out differently. Can we imagine that the University would have abandoned affirmative action? 8. The Integration Argument
In fact, the main reason the University of Michigan strives for a reasonable representation of minorities on campus is because of the way it conceives of its mission: to prepare Michigan’s future leaders. The argument is straightforward: 1. The leadership of the state ought roughly to represent the state’s population, ethnically and racially. 2. As the state’s premier training ground for leadership, the University ought to graduate rising generations of future leaders that conform to this representational goal. . To graduate such rising generations, it needs to admit racially and ethnically representative classes. This is the “Michigan Mandate. ” Racial and ethnic diversity aren’t incidental contributors to a distinct academic mission; they are part of the mission of the University, just as educating young people from Michigan is part of it. This “integration” rationale seems much more aligned with the actual practice of university affirmative action than the diversity rationale.
Indeed, in the midst of her nominally Powell-like defense of the Law School, Justice O’Connor for a moment veered away from the “educational benefits of diversity” to go down a quite different path. Institutions like the University of Michigan and its Law School, she noted, “represent the training ground for…our Nation’s leaders. ” She went on: In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.
All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. …Access…. must be inclusive…of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.  This “legitimacy” argument—not in any way about enriching the climate of opinion on campus—parallels the simple syllogism set out just above. It provides an oblique way of justifying the second premise.
Justice O’Connor inserted this new rationale into the middle of her Grutter opinion—inserted it unexpectedly and then abandoned it just as quickly to resume tracing the byways of diversity. Certainly, something in the spirit of the “Michigan Mandate” has animated the elite universities studied by William Bowen and Derek Bok in The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions. The primary aim of these institutions is not through vigorous affirmative action to enhance the liberal learning of their students (although they welcome this gain for all students).
Their main motive for assuring that the percentage of African-Americans and Hispanics on their campuses is more than token derives from their self-conceptions as institutions training individuals who will some day take up national and international leadership roles in the professions, arts, sciences, education, politics, and government (Bowen & Bok 1998, 7). Society, they believe, will be stronger and more just if the ranks of its leading citizens include a racially and ethnically broader range of people than it does now (and than it did twenty-five years ago).
Three recent works have developed versions of the integration argument. In a long article, “Integration, Affirmative Action, and Strict Scrutiny,” published just before the Supreme Court’s decisions in Grutter and Gratz, Elizabeth Anderson argues that an integration rationale is superior to the diversity rationale not only on its merits but as a plausible rending of what “compelling state interest”—the legal standard employed by the Supreme Court in racial classification cases—really demands. She concludes: Current affirmative action debates have ost sight of the ideal of integration as a compelling moral and political goal. Unless disadvantaged racial groups are integrated into mainstream social institutions, they will continue to suffer from segregation and discrimination. But the loss is not only theirs. It is a loss suffered by the American public at large in its failure fully to realize civil society—extensive social spaces in which citizens from all origins exchange ideas and cooperate on terms of equality—which is an indispensable social condition of democracy itself.
It is high time that institutions of higher education—the most ardent practitioners of integration today—forthrightly defend this ideal in its own right, and that the Supreme Court recognize integration as a compelling interest legitimately addressed through race-conscious means. (Anderson 2002, 1270–71) Robert Fullinwider and Judith Lichtenberg, in their 2004 book, Leveling the Playing Field: Justice, Politics, and College Admissions, present an integration argument for affirmative action centered around the little syllogism above (Fullinwider & Lichtenberg 2004, 165–188).
A state like Michigan has strong reasons for wanting its leaders of commercial, financial, legal, cultural, and educational institutions to reflect to some practical degree the racial and ethnic variety of its population. One of the reasons is offered by Justice O’Connor: the very legitimacy of state institutions comes under a cloud if important segments of the population—long excluded from participating at the highest levels—remain on the outside looking in. Another reason is emphasized by Elizabeth Anderson: democratic governance draws nurture from inclusion rather than exclusion.
If the leaders who frame the political agenda and shape public opinion remain uniformly white, the common good gets shortchanged; it isn’t really common. Finally, racial and ethnic comity are harder to achieve when whites see a black or brown face in a position of leadership or power as a novelty rather than a commonplace.  Thus, if states like Michigan have strong reasons for creating an integrated stratum of leaders, they have strong reasons for making sure that the universities that feed this stratum are themselves integrated.
Lastly, Lesley Jacobs, in Pursuing Equal Opportunities (2004), sees affirmative action as a means of overcoming the structural exclusion of African-Americans from major institutions: affirmative action assists structural integration, and structural integration serves the ideal of equal opportunity (Jacobs 2004, 124–142). The integration argument, like the diversity argument, is straightforwardly instrumental. It points to hoped-for outcomes of affirmative action.
If those outcomes don’t materialize, then affirmative action’s cause is weakened. Moreover, the little integration syllogism isn’t complete as it stands. It needs to include another premise: that the gains from achieving racially and ethnically integrated classes don’t come at a disproportionate cost. Perhaps the cost is high, or even too high. Stephan and Abigail Thernstrom certainly think so. They contend that most of the cost falls on the very persons affirmative action is supposed to benefit.
Under-prepared African-Americans are thrown into academic environments where they cannot succeed (Thernstrom & Thernstrom 1997, 395–411). In the Thernstroms’ view, race-blind admissions policies will result in a desirable “cascading,” with African-American and Hispanic students ending up at colleges and universities where the academic credentials of their fellow students match their own. However, the Bowen and Bok study provides some evidence that cascading isn’t necessarily a valuable phenomenon.
In fact, at the schools they studied, the better the institution a student entered, whatever his academic credentials, the more likely he was to graduate, go on to further education, and earn a good income (Bowen & Bok 1998, 63, 114, 144)..  Even so, the select schools Bowen and Bok studied may be quite unrepresentative of the full range of colleges and universities that resort to racial preferences and the cost-benefit picture that holds for these schools may not hold for the rest.
Indeed, the picture drawn by Richard Sander in a lengthy review of affirmative action in law schools, published in the November 2004 Stanford Law Review, lends credence to the Thernstroms’ academic mismatch thesis. Ranking law schools from best to worst, Sander found that affirmative action boosts African-American students 20 or more steps up the ladder, putting them in schools with white classmates who possess considerably better LSAT scores and college grades. The upshot: “close to half of black students end up in the bottom tenth of their classes. This bad performance yields three bad consequences. First, African-American students suffer high attrition rates. Second, they fail the bar exam at a high rate (the principal predictor of a student’s passing or failing is her grades, not the quality of her school). Third, they suffer a significant employment penalty for low grades “in all schools outside the top ten. ” Sander estimates that under a race-blind admissions system, American law schools would actually create more African-American lawyers than they do under affirmative action (Sander 2004, 449, 460, 478, 479).
Sander’s article has inspired a flurry of responses disputing his methodology and conclusions (e. g. , Ayers & Brooks 2005, Chambers, et al. 2005, Wilkins 2005, Ho 2005, and Barnes 2007). In a 2008 piece, Jesse Rothstein and Albert Yoon perform their own analysis of Sander’s data and conclude that the abolition of affirmative action would reduce the number of African-Americans who become lawyers by fifty percent. Race-blind admissions would leave elite law schools with virtually no African-American students (Rothstein & Yoon 2008, 712).
That different scholars derive from the same data broadly opposed conclusions points to the technical complexities in subjecting to statistical analysis information about black and white students’ undergraduate grades, LSAT scores, quality of law school attended, class ranking within the law school, graduation rates, bar exam passage rates, and prestige of initial employment; and of drawing from that analysis conclusions about cause and effect. What is not in dispute are the data. Sander and his critics rely on a mass of information collected between 1991 and 1997 on a cohort of students by the Law School Admissions Council.
Sander and several associated scholars have now embarked on a project to extract from universities and professional schools more current and more extensive information to allow tracking the success of more recent cohorts of students, black and white, graduate and undergraduate (Schmidt 2008, A19). The final chapter remains to be written about affirmative action’s net benefits and costs. 9. Desert Confounded, Desert Misapplied The affirmative action debate throws up many ironies but one in particular should be noted.
From the time in 1973 when Judith Jarvis Thomson conjectured that it was “not entirely inappropriate” that white males b