Race, Affirmative Action, and the Law Read online

  Like all policies, affirmative action entails costs. It risks instilling excessive race-mindedness, stoking resentments, and diverting attention from those whose needs are even greater than those typically benefited by positive discrimination. Affirmative action also creates, or at least exacerbates, stigmatic harms, calling into question the ability, or even the capacity, of putative beneficiaries. In these pages I will say much about these costs, which are substantial. I maintain, though, that the net benefits generated by affirmative action justify its continued existence.

  I also argue that affirmative action, in its typical design and implementation, is in accord with the federal Constitution. There is nothing in the Constitution’s text, in the intentions of its framers, or in the logic of its mission that should be seen as precluding racial affirmative action. The Supreme Court has cast a heavy pall over affirmative action because it runs afoul of what it claims is a mandate of constitutional color blindness. The Court is wrong. The Constitution does not compel color blindness and should not be seen as harboring an aspiration for color blindness. The Fourteenth Amendment directs states to offer all persons “the equal protection of the laws”—a malleable formulation that is sufficiently capacious to accommodate affirmative action.

  Constitutional color blindness threatens policies that are assisting to create a multiracial polity in which previously oppressed peoples participate as productive, equal actors in every sphere of American life. Constitutional color blindness is thus a destructive jurisprudence. The Constitution should be construed as prohibiting only invidious racial discrimination, by which I mean conduct undertaken for racial considerations not merely despite hurtful consequences but because of its hurtfulness.6 Other sorts of racial distinctions, including racial affirmative action, should be regulated by regular majoritarian politics.

  While controversy over affirmative action arises in a variety of settings, including employment, housing, electoral districting, and the selection of jurors, the struggle over higher education is the context on which I concentrate. I do so mainly because, as Professor Glenn C. Loury observes, “elite education is the primary site in American life where access to influence and power is rationed.”7 The intense interest in the affirmative action controversy at the top public and private colleges and universities, where seats are scarce and competition savage, stems from their positions as key gateways to opportunity, socialization, and certification. Selective institutions of higher education are far-reaching training grounds for the power elite.h That largely explains why the struggles at these sites have given rise to the most significant judicial rulings, the most influential writings in the affirmative action literature, and the most important of the electoral campaigns against so-called reverse discrimination.

  Affirmative action’s foreseeable future is likely to mirror its present confusing condition. Consider, for example, that many proponents of color blindness support so-called race-neutral affirmative action programs that use nonracial criteria such as income or class rank with the expectation that doing so will yield larger numbers of successful racial minority candidates. Many such programs are race-conscious right beneath the patina of their apparently raceless packaging. Some color-blind constitutionalists attack such programs, charging that they are illicitly race-sensitive even if, textually, they are silent as to race. That attack, though, will fail to resonate anytime soon. The affirmative action ethos has become deeply rooted. The social forces that created it, combined with changes it has wrought, have made racial homogeneity unacceptable in most key public forums. Even many conservatives who decry affirmative action accord enhanced value, because of race, to like-minded people of color who integrate their ranks, such as Clarence Thomas, Thomas Sowell, Condoleezza Rice, Herman Cain, Susana Martinez, Michelle Malkin, Marco Rubio, Allen West, Tim Scott, Ben Carson, and Shelby Steele. The diffusion of the sentiments that have generated affirmative action will prevent its extinction, though it will probably be increasingly constrained. For now, affirmative action is like an injured bear: too strong to succumb to its wounds but too hurt to attain full vitality.

  Before proceeding, a word needs to be said about the problem of defining “affirmative action.” It is a slippery term even when one is trying to be clear and straightforward. Often, though, antagonists in the affirmative action wars care little about clarity, in that what they most desire is to score a propaganda victory for their side by whatever means necessary. This is the reality that prompted a California judge to observe aptly that “the term ‘affirmative action’ … is rarely defined … so as to form a common base for intelligent discourse.”8 Indeed, the term itself has been a subject of litigation. Organizers of the ballot initiative that ultimately banned affirmative action in public education, contracting, and employment in California decided to omit any mention of “affirmative action” from the text of their proposal, Proposition 209. They did so upon learning that while many voters reacted negatively to the term “preferences,” these same voters reacted positively to “affirmative action.” The authors of Proposition 209 responded accordingly: they designed their ballot initiative so that it expressly banned “preferences” while saying nothing about “affirmative action.” Opponents of Proposition 209 sought a clarification that would inform the public that outlawing preferences would entail the outlawing of affirmative action. They sought a court order to force the state attorney general to note on the ballot that ratification of the initiative would prohibit both “affirmative action” and “preferences.” They prevailed before a trial court but lost on appeal.9 As a result, many voters who actually supported keeping at least some form of “affirmative action” nonetheless helped to erase it altogether.10

  Supporters of affirmative action are not the only ones who have complained about deceptiveness; opponents have complained as well, charging that backers of affirmative action systematically hide the nature of the pro-minority racial favoritism that operates within affirmative action programs. Professor Lino Graglia remarks scoffingly that “ ‘affirmative action’ is simply a euphemism for racial discrimination,” while Professor Brian Fitzpatrick derides “diversity” admissions protocols as a “lie.”11 Others charge that affirmative action is a constantly changing shell game governed by nothing more elevated than perceptions of what will be good for beneficiary groups.

  When first used in a racial context, “affirmative action” referred to efforts to enforce prohibitions against invidious discrimination. Hence, in the first state proscription of racial discrimination in employment, New York’s law of 1945,12 the legislation authorized a commission to order that a culpable defendant “cease and desist” from its unlawful practice and “take such affirmative action,” including hiring, reinstating, or upgrading employees as warranted. Later, President John F. Kennedy directed that all federal contracts include a provision requiring contractors to “take affirmative action to ensure that applicants are employed … without regard to their race, creed, color, or national origin.”13 Kennedy meant to endorse vigorous enforcement of antidiscrimination norms—nothing more. It is this version of affirmative action—we might call it the old affirmative action—that was, according to some commentators, underhandedly supplanted by a new affirmative action that entailed granting group-focused preferences to racial minorities.14 Charges of betrayal and dishonesty are often excessive.i Many who broadened the scope of the old affirmative action, adding to it an enhanced boost for racial minorities, openly did what has been done repeatedly throughout history: they adapted an existing term and idea to changing circumstances to reach ends illuminated by new knowledge.

  The charge of disingenuousness, however, is not wholly baseless. Wrongly denying that there is any element of “preference” or “discrimination” in the new affirmative action, some of its proponents have hurt their own cause. Surely one of the most influential defenders of affirmative action over the past decade has been Barack Obama. Acutely sensitive to charges that he supports racial favoritism that discrimina
tes against whites, Obama defines affirmative action in a fashion meant to drain it of controversy. “Affirmative action programs,” he writes, “when properly structured, can open up opportunities otherwise closed to qualified minorities without diminishing opportunities for white students.”15 But how can that be? If a campus or work site is at all constrained by scarcity, as all selective ones are, special efforts made on behalf of racial minorities will necessarily diminish opportunities for whites, even if only minimally. Obama is simply obscuring the inescapable dilemmas that affirmative action poses. Racial affirmative action does distinguish between people on a racial basis. It does discriminate.j It does redistribute resources. It does favor preferred racial categories of candidates, promoting some racial minorities over whites with superior records. It does generate stigma and resentment.16 These issues cannot usefully be hidden for long behind verbal tricks. To properly and decisively convince the public of the value of affirmative action, proponents will have to grapple candidly with its dilemmas.17

  Struggles for terminological advantage, the passage of time, the inevitable fuzziness that accompanies popular usage, and desires to avoid making choices that might cost support are not the only obstacles to clarity in defining affirmative action. Problematic, too, is that “affirmative action” refers to a spectrum of interventions from “soft” to “hard.” One soft form is outreach affirmative action—targeted recruitment to elicit applications from those who might otherwise refrain from applying for an opening because of unfamiliarity or because of knowledge that applicants from certain groups were unwelcome in the past.k Another soft form of affirmative action is defining “discrimination” in a way that requires a decision maker to use a selection process that will minimize the extent to which it adversely affects already disadvantaged groups. Under this “disparate impact” theory of discrimination, a selection scheme that disproportionately excludes racial minorities may be deemed illegal even in the absence of racial intent.18

  Hard forms of affirmative action include setting aside opportunities exclusively for those affiliated with designated groups or selecting persons affiliated with a designated group over competitors with superior credentials, or negating seniority to protect junior hires who hail from certain groups. The form of the affirmative action policy in question affects the intensity of the conflict surrounding it; typically, the harder the policy, the more resistance it provokes.

  In the end, two points are clear. The first is that, however defined, “affirmative action” is a contested term that is unlikely to be described in a fashion that will garner a consensus. The second is that I must nonetheless posit a definition. From now on, unless otherwise noted, when I refer to “affirmative action,” I mean policies that offer individuals deemed to be affiliated with a beneficiary group a preference over others in competitions for employment, education, or other valued resources.l

  * * *

  aPreviously, the Supreme Court had held that paying tuition for blacks to attend out-of-state schools that accepted them failed to satisfy a state’s obligation to provide racially equal educational opportunities. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). As has often been the case, a long lag separated the Court’s ruling and realities on the ground.

  bSee Jack Bass and Jack Nelson, The Orangeburg Massacre (second edition, revised and enlarged, 1984).

  cMy experience is by no means unique. For recollections of similar experiences, see William Julius Wilson, “Race and Affirming Opportunity in the Barack Obama Era,” DuBois Review, Spring 2012; Harry T. Edwards, “The Journey from Brown v. Board of Education to Grutter v. Bollinger: From Racial Assimilation to Diversity,” Michigan Law Review 102 (2004): 944, 955–58. See also Stephen L. Carter, Reflections of an Affirmative Action Baby (1992).

  dI think of these organizations’ failure to honor, among others, W. E. B. DuBois (author of The Souls of Black Folk, Black Reconstruction in America and The Philadelphia Negro); Carter G. Woodson (inaugurated the celebration of Negro History Week, founded the Association for the Study of Negro Life and History, established the Journal of Negro History, and wrote scores of articles and books); Benjamin Quarles (author of The Negro in the American Revolution, Lincoln and the Negro, The Negro in the Civil War, and Black Abolitionists); or Charles Hamilton Houston (distinguished lawyer and educator who reinvigorated the Howard University School of Law and inspired scores of civil rights attorneys including Thurgood Marshall).

  eThey should be willing, for instance, to put an asterisk next to baseball great Babe Ruth, whose home run record was produced in the absence of black pitchers. See Larry Tye, Satchel: The Life and Times of an American Legend (2009).

  fA vivid illustration of this misconception emerged in the presidential election of 2012, when Mitt Romney and his supporters took umbrage with President Barack Obama’s observation that collective investments such as public schooling and road building play a role in every successful business enterprise. See, e.g., “You Didn’t Build That,” Wall Street Journal, July 17, 2012; James Taranto, “You Didn’t Sweat, He Did,” Wall Street Journal, July 18, 2012.

  gSee this page.

  hThe strategic importance of higher education, including professional schools, is shown by Justice Sandra Day O’Connor’s observation, still true today, that “individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives.” Grutter v. Bollinger, 539 U.S. 306, 332 (2003). Underlining the remarkable influence of the most selective institutions is the fact that, as of 2012, every member of the Supreme Court attended law school at either Harvard or Yale.

  iProfessor Carl Cohen claims, for example, that “the phrase ‘affirmative action’ was kidnapped. That honorable expression, originally denoting efforts to eradicate all preference by race, had its meaning inverted. In the good name of what had been designed to uproot preference, preference was now formally incorporated and made often obligatory.” See Carl Cohen and James P. Sterba, Affirmative Action and Racial Preference: A Debate (2003), 20.

  jA law in South Africa requires universities there to take “appropriate measures for the redress of past inequalities” but declares that they “may not unfairly discriminate in any way.” That the law prohibits “unfair” discrimination suggests an implied recognition and permission for “fair” discrimination. Because “discrimination” in America has come to be associated only with evil practices, friends of affirmative action often attempt to dissociate it from any form of “discrimination.” I understand this strategy but decline to follow it. I use a number of synonyms in referring to affirmative action, including “positive discrimination” and “fair discrimination.” See Judith February, “From Redress to Empowerment: The New South African Constitution and Its Implementation,” in David L. Featherman, Martin Hall, and Marvin Krislow, eds., The Next Twenty-five Years: Affirmative Action in Higher Education in the United States and South Africa (2010), 77.

  kMany opponents of “racial preferences” were once willing to overlook outreach affirmative action. As the struggle has worn on, however, ideological clarity has generated a more exacting view. Courts have ruled, for instance, that California’s Proposition 209 bars racially selective outreach. See, e.g., HiVoltage Wire Works, Inc. v. City of San Jose, 24 Cal.4th 537 (2000). See also Eugene Volokh, “The California Civil Rights Initiative: An Interpretive Guide,” UCLA Law Review 44 (1997): 1335, 1340–53. For traces of the earlier, more relaxed view, see Thomas Sowell, Affirmative Action Reconsidered 3 (1975); Richard Posner, “The Bakke Case and the Future of Affirmative Action,” California Law Review 67 (1979): 171, 188. (“The practice of simply searching harder for black applicants … is racial discrimination … [But] it seems unlikely that … ‘unequal search’ will be held unconstitutional. Its adverse effects on whites are probably too slight and attenuated to constitute a denial of equal protection.”) But see Roland Fryer, Jr., and Glenn
C. Loury, “Affirmative Action and Its Mythology,” Journal of Economic Perspectives 19 (2005): 147, 150. (“Targeted outreach will generally lead to an equilibrium in which the targeted applicants … enjoy wider job options, more bargaining power, and consequently greater remuneration than comparable nontargeted applicants.”)

  lBelow are other ways in which commentators have defined “affirmative action.”

  Affirmative action “refers to a wide array of measures … which grant preferential treatment in the allocation of scarce resources … to the members of underrepresented, ascriptive groups formerly targeted for racial discrimination.” Daniel Sabbagh, Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law (2007), 2.

  “By ‘affirmative action,’ I refer to any policy that aims to increase the participation of a disadvantaged social group in mainstream institutions, either through ‘outreach’ (targeting the group for publicity and invitations to participate) or ‘preference’ (using group membership as criteria for selecting participants).” Elizabeth Anderson, The Imperative of Integration (2010), 135.