Affirmative Action: Contentious Ideas and Controversial Practices

 

John Michael Eden and John Paul Ryan

From university admissions offices to the board rooms of corporate America, few questions are as subject to dissent and heated discussion as affirmative action. The contentious nature of the debate reflects the deep ideological and political divisions among its participants. Critics have long held that affirmative action’s social utility is dubious on the one hand because it equates racial diversity with viewpoint diversity, and patently unfair on the other because it violates the core convictions of individualism. While such critics tend to view affirmative action as an unfair form of historical compensation based on group membership, supporters counter that affirmative action is needed to provide actual equality of opportunity, or to “level the playing field,” as President Lyndon Johnson argued in his Executive Order of 1965.

The term “affirmative action” refers to a number of different policies and practices meant to counter the effects of past racism and level the playing field in today’s society. These include seeking a more diverse applicant pool in educational admissions and job hiring; giving preferences (large and small) based on race, ethnicity, and/or gender; and even reserving or “setting aside,” for example, seats in a university classroom, slots in a job-training program, or promotions in a police department. All of these practices have been litigated over the past twenty years (see Key Supreme Court Cases on Affirmative Action on page 112).

Many interpret recent statewide voter initiatives banning affirmative action in California and Washington, as well as recent adverse decisions in three federal circuit courts (see Federal Circuit Cases on Affirmative Action on page 113), as signs of the end of thirty years of government-sponsored affirmative action policies and practices. To explore these controversies, the American Bar Association’s Division for Public Education assembled a group of scholars for a discussion in cyberspace of the historical, ethical, legal, and political aspects of affirmative action.

This group of nine scholars—who together have written numerous books, articles, and public essays on the subject of affirmative action—provides a wide range of perspectives on the subject. Their dialogue indicates that this is not a “pro-con” debate, but a nuanced conversation about a complex set of practices. The scholars began by considering the historical backdrop in which affirmative action developed as a window into its current viability as a legal and social policy. They also considered the role of affirmative action in college and university admissions at length, with particular attention being given to the problematic status of the “diversity rationale.”

 

Why Does Race Matter?

To answer this question, it becomes imperative to venture into history to discover the reasons for the continuing importance of race in America. Broadly speaking, many of the scholars who participated in our discussion seem to agree that present social conditions can be clearly traced to oppressive historical practices and institutions.

Glenn C. Loury, Director of the Institute on Race and Social Division at Boston University, believes that race is significant today because its pernicious consequences are still so evident in our political and social life. According to Loury, it is incumbent upon our society to figure out how to deal with “the social, economic, and political legacy left to us by our ignoble past.” But just what do we mean when we talk about our “ignoble past?” This certainly refers to slavery, but the connection between our current situation and those abominable historical practices is often left unexplored.

Some contend that the continued salience of race is the result not only of our historical past but of our present social conditions. Camille DeJorna, Director of Admissions at the University of Iowa Law School, points out that African Americans and other people of color still encounter significant obstacles to social and economic advancement. According to DeJorna, gaps in such quality-of-life measures as college enrollment and graduation rates, opportunities for employment and advancement, and lifelong earning potential, speak to the continued need for affirmative action. In her words, “hopes for equity demand that we continue to take race into account.” That is, it is precisely because one’s race significantly contributes to her overall quality of life, the quality of medical treatment that she receives, and the quality of her education that continued attention to issues of racial parity remains important for a society that values social justice.

But even if this is the case, does it make sense to keep asking questions about how or why racial disparities persist? According to Jennifer Hochschild, Professor of Politics at Princeton University, pursuing such questions often leads to a dead end. Hochschild argues that although economic dominance, psychological dynamics, and cultural conditioning all play a significant role, focusing on these causes of racism is unproductive. She suggests that, instead, we should be more concerned with finding solutions to these problems.

Nevertheless, in trying to understand why race matters, one cannot deny the connection between historical and modern conditions. Even if identifying the reasons for the persistence of racism and social inequality is extremely difficult, making general references to historical trends seems inescapable. For Donna Maeda, Assistant Professor of Religious Studies at Occidental College, it is insufficient for government, or society more generally, to promote racial equality as one of many goals; rather, it is essential to dismantle racial hierarchies that continue to exist.

But other scholars argue that the connections are more tenuous than previously thought. For example, Richard Kahlenberg, Research Fellow at the Center for National Policy, argues that it isn’t so clear that the history of racism compels society to continue to take affirmative steps to quell the present effects and residues of previously imposed racial inequality. For Kahlenberg, the significance of race in one circumstance does not necessarily justify its continued application in another. He believes that the focus on race resulting from affirmative action should be a short-term measure designed to achieve the long-term goal of a “color-blind society”—a term frequently used by contemporary critics of affirmative action.

This has some appeal: it seems that race’s present social import can be attributed to the social disadvantages with which it is often associated. We take someone’s race into account not because there is something inherently noble in this; indeed, our present-day courts remind us in their decisions and opinions how dangerous the use of race as a social category may be and has been throughout much of our nation’s history. Rather, we take race into account to “level the playing field.” Nevertheless, the distinction between equality of opportunity and equality of results is a slippery one, especially when one seeks to assess the significance of “quality-of-life” measures.

Still another viewpoint is offered by Douglas Kmiec, a law professor at Pepperdine University who also served in the Justice Department under President Reagan. He contends that race remains important because of cultural factors that, while largely responsible for the disparities in quality-of-life measures, should not be redressed by law. It would be improper and irrational, he argues, to rectify the acknowledged social and economic effects of racism through legal means, because these effects are not maintained by the law today. The ugly residues of racism are maintained only culturally and, as such, they should not be ameliorated through public policy or law. In Kmiec’s view, using racial classifications to further policy initiatives is suspect precisely because one’s race reveals nothing about one’s intelligence, integrity, or ability. In other words, a focus on race could reduce the significance of an individua#146;s talents, abilities, and capacities, an argument that some prominent African American scholars also make today.

 

Is Affirmative Action a Justifiable Social and Legal Policy?

Glenn Loury observes that our uneasiness with employing racial categories in public policy can be traced to the practices of slavery and Jim Crow segregation. African Americans were subordinated and oppressed as a result of their membership in a particular racial group; they were not singled out according to their particular talents or aspirations. But given the severe social, political, and economic impact that slavery and Jim Crow laws have had on African Americans, does it make sense to imagine that we currently have an equal “playing field”?

Loury points out that “merit” flourishes more readily in certain social conditions and less well in others. In Loury’s words, ‘“merit’ is not just something people are born with; it is the product of social processes which, because of our history ... have a racial dimension.” Thus, it becomes less justifiable to evaluate the “merit” of different individuals without reference to these social conditions. One might recognize that a particular individua#146;s race is morally or ethically irrelevant, while still believing that affirmative action is a necessary tool to establish social justice.

This way of looking at affirmative action distresses some scholars. According to Kmiec, there are two main reasons why affirmative action is an undesirable public policy. First, we can agree that “merit” is the product of social forces without concluding that disparities should be remedied by the government. Kmiec argues that the solution to these problems should occur at the individual, not the governmental, level. In his view, government-sanctioned affirmative action programs result in invidious discrimination between minorities and nonminorities that can only damage race relations in the end. However, given the social and economic challenges that face minorities, he acknowledges that there is a “powerful case” for private colleges, universities, and employers to implement affirmative action programs. Kmiec’s second point is that government cannot undertake affirmative action programs because public law must be uniform and specified in advance, which implies that preferences are prima facie unacceptable.

But is considering all individuals to be absolutely equal the same as treating everyone equally? According to Robert Fullinwider, Senior Research Scholar at the University of Maryland Institute for Philosophy and Public Policy, America’s tainted history is precisely what makes it imperative to treat people equally by treating them differently. Treating individuals from vastly different social and economic backgrounds equally, as if these backgrounds did not deeply affect their life chances, is tantamount to ignoring the spirit of individualism. Individualism, at its core, seeks to treat people fairly by being sensitive to their individual backgrounds. Our lives are touched in myriad ways by our particular circumstances, and to ignore this is to adhere to what Loury calls “color-blind formalism.”

Another possibility, suggested by Richard Kahlenberg, is to fine tune affirmative action programs so as to recognize that membership in a minority group does not automatically imply a social or economic disadvantage. While recognizing that there is a historical connection between disadvantage and race, we should not view these to be equivalent. By acknowledging that whites are also the victims of economic and social hardship, Kahlenberg’s remedy seeks to broaden the political and moral basis for affirmative action programs.

 

Who Should Be Given Preference in College Admissions?

Few arenas have been as hotly contested in recent years as admission to public colleges and universities. Supporters and critics have wrangled—on campus and in the courts—about racial preferences, diversity, inclusiveness, and their impact on the learning environment. It is ironic that the University of California system, which recently implemented a ban on affirmative action compelled by a statewide voter referendum, is the same system whose “set-aside” affirmative action practices in medical school admissions in the 1970s led to the Bakke decision. That 1979 Supreme Court decision sent universities nationwide scrambling to find alternative methods (other than quotas) for admitting racially diverse student classes.

Paul Finkelman, Professor of Law at the University of Akron, calls attention to the much more pernicious “affirmative action” program that has gone virtually unnoticed and unchallenged in private universities throughout most of the past. This program he calls the “legacy preference.” In private college admissions, the sons, daughters, cousins, and sometimes even distant relatives of alumni receive special consideration. Indeed, according to Jennifer Hochschild, one cannot underestimate the importance of being a child or relative of an alumnus in gaining admission to Ivy League schools. At Princeton, Hochschild contends, approximately 50 percent of legacy applicants gain admission, whereas only 15 percent of the general applicant pool is offered admission. In light of these figures, Kmiec’s suggestion that private institutions might adopt affirmative action policies seems like wishful thinking.

The most frequent defense of affirmative action in public college and university admissions focuses on the issues of diversity and inclusiveness. In a pluralistic, racially diverse society, it seems essential that diverse perspectives be represented at undergraduate, graduate, and professional schools. If students actively learn from one another, and if the learning environment is significantly affected by the breadth and character of the voices within it, then ensuring that the perspectives of people of color are well represented is imperative. Finkelman argues that we have strong reasons to believe that racial diversity benefits the learning environment, even in the absence of definitive social science data to support this claim. If education is to benefit American society generally, then we cannot merely have the views of one particular constituency presented.

Yet even if diversity of experience and perspective is a valuable educational goal, some contend that this doesn’t necessarily mean that affirmative action is the most viable alternative. As Robert Fullinwider points out, diversity of viewpoint and opinion is not necessarily correlated with racial background. There does seem to be some validity to this. For instance, Supreme Court Justice Clarence Thomas, an African American, has publicly acknowledged his opposition to affirmative action, much to the dismay of civil rights groups. Moreover, when the issue of “diversity” is raised in the admissions debate, racial diversity seems to take precedence over other factors, be they religious, linguistic, or geographical in nature. To what do we attribute the importance (some would say urgency) of racial diversity in our undergraduate, graduate, and professional schools?

Terry Swenson, Dean of Admissions at The Colorado College (a small, selective liberal arts college), believes that the emphasis on racial diversity is desirable because students of color are more likely to have endured educational, social, and economic disadvantage. According to Swenson, one can realize that racial diversity does not necessarily imply viewpoint diversity, yet still remain committed to affirmative action on the basis of race. Rather than considering only what particular racial category has been chosen on an admission form, he believes that admissions officers have a responsibility to consider a candidate’s academic and social virtues as well as background, including location and type of schools attended, parental occupations and educational histories, and the family’s socioeconomic status.

Camille deJorna also stresses the importance of these kinds of characteristics for the admission practices of the University of Iowa Law School, observing that her law school looks for “exposure to and experience with other communities and perspectives that add to the classroom.” Through admission practices such as these, where race is one but not the single overriding factor, universities echo both the spirit of Bakke and the current tenuous legal status of affirmative action.

Conclusion

There is a changing public climate surrounding affirmative action. A relatively broad consensus that supported public policies, including affirmative action, to foster racial equality has broken down. Voters in two historically progressive states—in multicultural California in 1996 and in Washington state in 1998—adopted initiatives that essentially ban state-sponsored affirmative action programs. Perhaps this is because such policies have made too little progress, frustrating some liberals who came of age in the civil rights revolution of the 1960s. Or, perhaps the policies have made too much progress, frustrating some conservatives seeking to preserve the privileges of the past.

The United States Supreme Court and federal circuit courts have also weighed in recently, issuing decisions that send strong caution to the continued use of race-based preferences of any kind or in any amount. President Clinton’s national dialogue on race, chaired by eminent historian John Hope Franklin, and his motto for affirmative action—“Amend It, Don’t End It”—may not be sufficient to preserve this policy brought into being by a Presidential Executive Order more than a generation ago.

 

Teaching Resources

Books

Ancheta, Angelo. Race, Rights, and the Asian American Experience. New Brunswick, N.J.: Rutgers University Press, 1998.

Beckwith, Francis J. , and Todd E. Jones, eds. Affirmative Action: Social Justice or Reverse Discrimination? Amherst, N.Y.: Prometheus Books, 1997.

Carmines, Edward, and James Stimson. Issue Evolution: Race and the Transformation of American Politics. Englewood Cliffs, N.J.: Princeton University Press, 1989.

CCC. Dred Scott v. Sandford: A Brief History with Documents. Boston: Bedford Books, 1997.

—————. We Are All Multiculturalists Now. Cambridge, Mass.: Harvard University Press, 1997.

Cose, Ellis. Color-Blind: Seeing Beyond Race in a Race-Obsessed World. New York: Harper Collins, 1997.

Crenshaw, Kimberle, Neil Gotanda, Gary Peller, and Kendall Thomas. Critical Race Theory: The Key Writings That Formed the Movement. New York: New Press, 1996.

Dalton, Harlon. Racial Healing. New York: Doubleday, 1996.

Eastland, Terry. Ending Affirmative Action: The Case for Colorblind Justice. New York: Basic Books, 1996.

Edley, Christopher. Not All Black and White: Affirmative Action and American Values. New York: Noonday, 1998.

Finkelman, Paul. Slavery and the Founders: Race and Liberty in the Age of Jefferson. Armonk, N.Y.: M. E. Sharpe, 1996.

Fullinwider, Robert. The Reverse Discrimination Controversy. Lanham, Md: Rowman and Littlefield, 1980.

Glazer, Nathan. Affirmative Discrimination: Ethnic Equality and Public Policy. Cambridge, Mass.: Harvard Press, 1989.

Hacker, Andrew. Two Nations: Black And White, Separate, Hostile, Unequal. New York: Ballantine Books, 1995.

Hochschild, Jennifer. Facing Up to the American Dream: Race, Class, and the Soul of the Nation. Princeton, N.J.: Princeton University Press, 1995.

Kahlenberg, Richard. The Remedy: Class, Race, and Affirmative Action. New York: Basic Books, 1996.

Kull, Andrew. The Color Blind Constitution. Cambridge, Mass.: Harvard University Press, 1993.

Lawrence, Charles R. III, and Mari Matsuda. We Won’t Go Back: Making the Case for Affirmative Action. Boston: Houghton Mifflin, 1997.

Loury, Glenn C. One by One from the Inside Out: Essays and Reviews on Race and Responsibility in America. New York: Free Press, 1995.

Maeda, Donna, ed. Rethinking Racial/Ethnic Diversity in a Post-Affirmative Action (forthcoming).

Morgan, Edmund. American Slavery, American Freedom. New York: W. W. Norton, 1975.

Shipler, David K. A Country of Strangers: Blacks and Whites in America. New York: Knopf, 1997.

Skretny, David. The Ironies of Affirmative Action. Chicago: University of Chicago Press, 1996.

Urofsky, Melvin I. Affirmative Action on Trial: Sex Discrimination in Johnson v. Santa Clara. Lawrence, Kans.: University Press of Kansas, 1997.

Williams, Patricia. The Alchemy of Race and Rights. Cambridge, Mass.: Harvard University Press, 1992.

 

Websites

www.abanet.org/publiced/focus/home.html

The ABA Division for Public Education moderated an on-line discussion among nine legal, social science, and humanities scholars and other educational leaders who offered a wide range of viewpoints on affirmative action in theory and practice. This is a text of that discussion.

 

www.acri.org

This is the web site of the American Civil Rights Institute, an organization that opposes affirmative action and advocates anti-affirmative action legislation.

 

www.civilrights.org/aa/art.html

This web site provides various articles on affirmative action, including information on applicable Senate Hearings. Maintained by the Leadership Conference on Civil Rights.

 

www.louisville.edu/library/ekstrom/govpubs/
subjects/affirmative/affirmative.html

This web site contains a wealth of information about affirmative action, and includes a number of related Internet links. Maintained by the University of Louisville.

 

John Paul Ryan is Director of School Programs for the ABA Division for Public Education. John Michael Eden is a doctoral student in the Department of Philosophy at Stanford University and previously was a Program Assistant for the ABA Division for Public Education.

 

Direct Votes on Affirmative Action

Hannah Leiterman

On November 4, 1998, Washington state voters passed Initiative 200, which prohibits state government entities from discriminating against or granting “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The initiative was passed by a solid majority of 58%, with 62% voter turnout statewide.

This means two states have now banned affirmative action programs in state agencies by the direct vote of citizens. California’s Proposition 209, which amended the state constitution and overrode conflicting statutes, was upheld by the California Supreme Court in August 1998. Washington’s Initiative 200 was passed by initiative without language that repealed previous statutes, and thus must be interpreted in conjunction with other state statutes, including state and federal laws mandating affirmative action.

Washington’s Governor Gary Locke, a highly visible opponent of Initiative 200, issued a directive on December 3, 1998, calling for three preference programs—one used in public employment hiring and two others involving race and sex preferences in the awarding of public contracts—to be discontinued. However, he also directs that outreach and recruitment programs for minority hiring should be intensified. Meanwhile, the University of Washington has already begun the process of suspending its race-conscious admissions policy, although some university officials say that they will work to maintain a diverse student body through other measures, according to a New York Times article on November 7, 1998.

Some city and county offices in Washington indicate that the initiative will not affect their practices, due to an exemption that says that public agencies do not have to end policies when this will result in the loss of federal funds. Seattle Mayor Paul Schell believes that the initiative will have little effect because the city has already met its affirmative action goals.

According to a Seattle Times article on November 4, 1998, exit polls indicated that Washington voters were more interested in amending current affirmative action programs and ensuring “fairness and equality in the way government and public universities operate” than in ending affirmative action altogether. José Gaitán, a Seattle lawyer and Chair of the ABA Commission on Opportunities for Minorities in the Profession, attributes the overwhelming voter approval for the initiative to its vague and confusing wording. Gaitán believes that the initiative will have a “terrible impact” on access of minorities in Washington state to higher education, which he considers fundamental to an inclusive and productive community for everyone. He adds that there is a continued need for affirmative action programs: “We’re rapidly approaching the point where there is no majority, yet the disparity between the races is so great … you can’t remediate 400 years of exclusion in 30 years.”

 

Hannah Leiterman is Program Assistant for School Programs for the ABA Division for Public Education.

Teaching Activities

Hannah Leiterman

1. Engage students in a conversation as citizens about affirmative action and the broader issues of race relations and racial equality in American society. Help students to consider the many different points of view on this topic. You may want to use the accompanying article as background or supplement to the discussion. [This model worked quite successfully in the National Conversation on American Pluralism and Identity, a special project of the National Endowment for the Humanities designed to bring together people of all ages and from all walks of life to talk about what it means to be an American in a highly diverse society.]

 

2. Assign students in pairs to research the background of the major Supreme Court affirmative action cases identified in the box on page 112 (these can be found on the World Wide Web at oyez.nwu.edu/cases/cases.cgi). Then ask students in each pair to choose sides and present their viewpoints on the case to the class.

 

3. Provide the most recent statistics on average income of households by race for the nation (www.census.gov) or for your city. Discuss why there might be such disparity between races. Have students vote on whether government has a duty to create equality, and then write a position paper explaining why or why not.

 

4. Have students write an “equality plan” that would prevent discrimination from occurring in your school.

 

5. Have students write about their own racial or ethnic background. What kinds of discrimination, if any, did they or their ancestors face in the United States or in their original homeland?

 

6. Have students research the implementation of President Johnson’s executive order establishing affirmative action in 1965. Ask students to give oral reports that focus on the rationale for, or the contemporary debate over, the executive order.

 

7. Ask students to research affirmative action on the web (see exemplary websites under “Resources”). Have students focus on what kinds of organizations support or oppose affirmative action.

 

Federal Circuit Cases on Affirmative Action

Three recent decisions in various federal circuits have further weakened the already tenuous legal status of affirmative action programs in the wake of Adarand. In Hopwood v. Texas, 78 F. 3d 932 (5th Cir. 1996), the 5th Circuit rejected a University of Texas Law School program that systematically admitted African Americans and Mexican Americans, as a group, with lower “scores” (test scores and grades) than white students. In Podberesky v. Kirwan, 38 F. 3d 147 (4th Cir. 1994), the 4th Circuit rejected a University of Maryland minority scholarship program that set aside scholarships specifically for members of minority groups. Most recently, in Wessman v. Gittens, 160 F. 3d 790 (1st Cir. 1998), the 1st Circuit rejected a Boston public [magnet] secondary schoo#146;s admission program that weighted test scores with race for half of the available student seats.

Key Supreme Court Decisions on Affirmative Action

 

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

The UC Davis medical school set aside 16 (of 100) seats specifically for minorities, a practice the Court found to be in violation of the Equal Protection Clause of the Fourteenth Amendment. The Court held that race can be used as a positive factor in admissions or hiring practices, but cannot be the only factor.

 

United Steel Workers of America v. Weber, 443 U.S. 193 (1979)

The Court held that a private company’s affirmative action program, in which 50% of the positions in a training and promotion program were reserved for black employees, was not unconstitutional because it was private and voluntary, and sought to eliminate manifest racial imbalances in traditionally segregated job categories.

 

United States v. Paradise, 480 U.S. 149 (1987)

The Court upheld a temporary quota system for promoting black state troopers to corporal and other ranks by the Alabama Department of Public Safety, finding that the program addressed a compelling governmental interest in eliminating the entrenched discrimination in the Department.

 

Johnson v. Santa Clara County, 480 U.S. 616 (1987)

The Court held that it is permissible to use sex-conscious preferences in hiring in order to eliminate gender imbalances in the labor force. The Court found that the plan did not “unnecessarily trammel male employees’ rights or create an absolute bar to their advancement” and included no hiring quotas to be met.

 

Richmond v. J. A. Croson Co., 488 U.S. 469 (1989)

The Court found that a quota system that aimed at increasing minority representation in public contract hiring failed under “strict scrutiny,” the heightened standard under which racial discrimination cases are examined. Because the program failed to demonstrate that minorities were suffering under the effects of past discrimination, the Court held the program to be in violation of Equal Protection.

 

Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990)

The Supreme Court asserted that the federal government did indeed have greater authority to require affirmative action programs than did individual states, and upheld the plan even though it was not designed to compensate victims of past discrimination.

 

Adarand Constructors v. Peña, 512 U.S. 200 (1995)

Striking down an affirmative action program that sought to increase minority participation in federal contracting, and overruling Metro Broadcasting, the Court ruled that federal government racial classifications are subject to the same “strict scrutiny” that is applied to state racial classifications. The classification must be based on a compelling government interest, and must be narrowly tailored to further that interest.

©1999 National Council for the Social Studies. All rights reserved.