How to Defend Affirmative Action?
— Elizabeth Anderson
AFFIRMATIVE ACTION IN higher education is in legal retreat. Courts have struck down affirmative action programs at the University of Maryland, the University of Texas, the University of Georgia, and the Boston Latin School. They have banned them in Texas, Louisiana, and Mississippi. While courts have upheld affirmative action in California and Washington, these decisions have been rendered moot by voter referenda prohibiting affirmative action in these states.(1) Gov. Jeb Bush has abolished affirmative action in public Florida universities by executive order.
Now its survival hangs on the fate of two lawsuits filed against the University of Michigan. In Gratz v. Bollinger, Judge Patrick Duggan upheld the constitutionality of UM's undergraduate admissions policy. In Grutter v. Bollinger, Judge Bernard Friedman issued an injunction forbidding the Law School from considering race in admissions. Both cases have been appealed and are likely to reach the Supreme Court, thereby determining the legal future of affirmative action in higher education.
An Elite Conflict
The struggle over affirmative action is a conflict among elites over the character of the U.S. elite. The Republican Party and allied conservative organizations have successfully mobilized white resentment against admissions and employment preferences for Blacks, Latinos, and Native Americans. Yet, a powerful array of elite institutions, including most large corporations, professional schools and selective undergraduate colleges, practice affirmative action with enthusiasm--or would do so if legally permitted.
Below elite levels, affirmative action is rare. Small firms, many of which are exempt from employment discrimination law, are far more likely to discriminate against racial minorities than to favor them. Nonselective colleges, which enroll eighty percent of U.S. undergraduates, have no basis for practicing affirmative action because they accept all minimally qualified applicants. This means that disadvantaged racial groups don't need affirmative action to get into college. They need it to get significant representation in selective colleges and professional schools, which train the U.S. elite. The struggle over affirmative action is about whether the United States shall have an elite with only token nonwhite participation, or whether it will be racially integrated.
That affirmative action is a conflict about elites means that the targets of affirmative action are relatively advantaged. Elite schools are very good at turning well- prepared students of all races into highly educated professionals and managers. They have little idea how to enable poorly prepared students to achieve the same heights. This is not for lack of trying. In the mid-1960s, many selective colleges energetically recruited inner-city Blacks, only to discover that they failed classes and dropped out at alarming rates.
By the early 1970s, selective colleges redirected their recruitment efforts to middle-class Blacks and Latinos from better schools, with much greater success. Since then, the average academic qualifications of the minority students admitted to selective colleges by dint of affirmative action have been well above the average for all U.S. college students, and for all white college students.(2)
This fact undermines some standard arguments about affirmative action. Critics complain that the targets of affirmative action don't deserve admission because they have not earned their way on the basis of their academic merit. However, all agree that the Black, Latino, and Native American students who would have been admitted in the absence of affirmative action did earn their way on their own merits. So any other student with equivalent academic qualifications equally merits admission. But the students admitted by dint of affirmative action are indistinguishable in academic qualifications from their same-race peers who would have been admitted without affirmative action.(3) Selective schools don't have to lower academic standards to admit more minority students, because they receive far more applications from academically deserving students of all races than they have openings.
Critics also object that affirmative action harms those it admits by putting them into academically challenging environments for which they are underprepared. They claim these students would be better off if they attended the less selective schools to which they would be admitted if affirmative action were abolished. This is contradicted by the fact that minority students who attend more selective schools have substantially higher graduate rates, attainment of advanced degrees, and income, than equally qualified minority students who attend less selective schools.(4)
The Vulnerability of Bakke
However much the right would like to end affirmative action, the law imposes constraints on their freedom of action. A large enough body of precedent constitutes a powerful obstacle to change. This explains the difference between the legal stability of affirmative action by private employers, and the insecurity of affirmative action in education. Affirmative action in employment is based on a unified legal rationale and a large, consistent body of doctrine accumulated over numerous cases that upheld affirmative action programs, with the approval of the Supreme Court.
By contrast, the legal status of affirmative action in higher education is based entirely on a single Supreme Court case, Regents of the University of California v. Bakke, decided in 1974 and not revisited since. What's worse, the slender majority of five that upheld the constitutionality of affirmative action in education could not agree on a unified rationale for their judgment. Four justices, led by Justice Brennan, argued that affirmative action was justified as a remedy for past discrimination and its effects. Justice Powell, who provided the crucial fifth vote, upheld affirmative action in higher education in the name of schools' First Amendment interest in promoting a “robust exchange of ideas” by admitting a “diverse” student body. The conflict between these two rationales has provided the opening through which hostile judges, including Judge Friedman in Grutter, have dealt serious blows to affirmative action.
In Grutter, the University of Michigan rested its case on Powell's diversity argument. A group of students who won the right to intervene in the case presented a separate remedial rationale for affirmative action consistent with the Brennan group's racial justice perspective. The intervenors argued that standardized admissions tests such as the SAT and LSAT are racially biased and that the history of discrimination has confined most Blacks and Latinos to inferior schools. Affirmative action is therefore justified as a remedy for racial bias in admissions, a way of leveling the playing field in the competition for access to selective schools. This argument is essentially meritocratic, only it defines merit in terms of underlying rather than realized potential. It claims that it is unfair to admit students on the basis of realized potential because this measure conflates underlying talent with unfair external advantages and disadvantages.
It is not hard to see why the University of Michigan did not like the thrust of this argument. Carried to its logical conclusion, it would destroy the justification for a selective admissions process. Elite universities care about realized, not just about potential talent, because they are not equipped to bring underprepared students up to academic speed. That is the job of the numerous open-admissions colleges most undergraduates attend.
Were elite colleges required to admit students on the basis of potential rather than actualized academic ability, they would have to divert enormous resources away from more challenging and advanced courses toward remedial and less challenging courses. They would also be deprived of a pool of students able to assist in the vast cutting-edge collaborative research projects that constitute the principal mission of the leading educational institutions. They would lose their status as producers of the most advanced students and research, and hence their claim to elite standing.
No wonder the attorneys representing the UM Law School refused to call Claude Steele, one of their expert witnesses, to testify on racial bias in standardized tests. Their refusal to do so crippled the intervenors' case. The Law School probably foresaw that, in conjunction with the intervenors' arguments, the implications of Steele's testimony could not be confined to race, but could be used to undermine their use of standardized tests and other selective admissions criteria for all applicants.
Judge Friedman did exactly this, in two ways. First, he interpreted the student intervenors' moving testimony about the underfunding of their schools as an argument about class, not race. He conceded that past racial discrimination had disproportionately placed Black, Latino, and Native American students in poorly financed school districts and economically disadvantaged circumstances. But that causal history did not change the “fact” that what primarily disadvantaged them now was their class.
This put the students of color in the same category as poor white students, many of whose ancestors (if they were Arab, Irish, southern or eastern European) had also suffered from discrimination. Because the Equal Protection clause requires similarly situated groups to be treated the same, the intervenors' arguments could not justify an affirmative action program confined to Black, Latino, and Native American students. They would have to include any white students who had suffered from discrimination or its historic effects, or else move to a class-based affirmative action system.
Next, he seized upon the intervenors' arguments about racial bias in standardized tests to offer the University a Hobson's choice. He was willing to concede its claim that racial diversity is educationally beneficial. But granting this, if conventional measures of academic qualification are so racially biased, then the University should satisfy its diversity interests in a race-neutral way, by abolishing the use of biased admissions criteria such as standardized tests.
Judge Friedman's offer was disingenuous. There is no race-neutral admissions system that secures meaningful racial diversity while maintaining academic standards.(5) Neither a random lottery among students who meet some significant threshold of academic qualification nor class-based affirmative action can yield significant racial diversity, because the number of whites at all levels of above-average qualification, and of poor and working-class whites at any selective level, overwhelms the number of black and Latino students with comparable class standing and/or academic qualifications.
California, Florida, and Texas guarantee admission to the top few percent of high school graduates to their first-tier university systems. Racial segregation ensures that the top few percent of many high schools will be Black and Latino. However, in multi-campus university systems, such as California and Florida, the top-ranked schools (Berkeley, UCLA, University of Florida at Gainesville) retain more selective standards. This shunts the students of color who graduated at the top of their academically inferior high schools to the less prestigious campuses. The result is a racial distribution of students little different from what would have occurred if no attempts were made to make up for the abolition of race-based affirmative action.
In Texas, the top ten percent of all high school graduates are guaranteed admission to the flagship campus in Austin. This has had the salutary effect of encouraging Black and Latino high schools to start offering a college preparatory curriculum. However, the white high schools have been gaming the system by manipulating class rankings and reducing Advanced Placement enrollments (why risk a B in AP calculus, if one can get an A in consumer math?).(6) This does not bode well for UT's academic standards.
“Diversity” as Integration
To the left, for whom the point of affirmative action is to advance racial justice, “diversity” seems like a flimsy rationale. Yet the diversity defense reflects a powerful theme of constitutional interpretation: the Supreme Court will not interpret a constitutional requirement so as to cripple the ability of a socially necessary institution to carry out what the Court sees as that institution's function.
So, the president may fire a military officer for criticizing White House military policies, because the officer's right to free speech is limited by the need for civilian control of the military. Principals may engage in warrantless searches of student lockers, because Fourth Amendment rights are limited by schools' needs to maintain order as a prerequisite to learning. The same logic applies to equal protection. “Boot camps” for prisoners who are mostly Black may preferentially promote Black corrections officers, because Black inmates will refuse to play the “correctional game of brutal drill sergeant and brutalized recruit” (without which criminal “correction” is thought impossible) unless Black corrections officers hold positions of authority.(7)
According to the diversity defense, schools may preferentially admit members of underrepresented racial groups because their educational function of engaging diverse perspectives would be undermined if their student body were racially homogeneous. By contrast, Powell rejected compensatory arguments for affirmative action in admissions--he didn't think the job of schools was to remedy wrongful discrimination committed by others. That's a function courts assign to themselves.
This is not to say that the diversity defense has no weaknesses. Judge Friedman, following the Hopwood court, pronounced Powell's diversity rationale dead on the ground that no other justice joined the part of his opinion upholding it. More importantly, Justice O'Connor, widely regarded as the crucial “swing” vote in equal protection cases, has sharply questioned the purported link between racial diversity and viewpoint diversity that underlies the diversity defense.(8) As the Hopwood court asked, what's “blood” got to do with it?(9)
Two things are needed to reconstruct a viable legal defense of affirmative action in education. First, the gap between the racial justice and diversity rationales that makes Bakke so vulnerable must be closed, in a way consistent with constitutional precedent. Second, the defense must make explicit the distinctive social and hence epistemological and educational significance of race in the United States as reducible neither to class nor “blood.” Both desiderata can be achieved by recasting the point of affirmative action in terms of racial integration.
To see this, consider the fact that the political economy of race in the United States is akin to a caste system, in which those with discernible African and indigenous North American ancestry (whether Native American or mestizo) have been constructed as untouchable. The spatial expression of untouchability is segregation. Although formal racial segregation of public accommodations has been abolished, residential racial segregation remains entrenched. Blacks and Latinos with discernible African ancestry (e.g., black Puerto Ricans) are hypersegregated, and segregation rates of Mexican-Americans have increased in the past decade. In the major metropolitan areas where most Blacks live, a Black person searching for housing who looks at three units faces well over a ninety percent chance of housing discrimination. White neighborhoods close to Black entry as soon as the probability of a random encounter of a white resident with a Black resident exceeds token levels. This is a racial, not a class phenomenon: segregation rates for Blacks do not decline with income.(10)
Segregation isolates Blacks and Latinos from the informal social networks that govern access to economic opportunities. Even in the absence of deliberate discrimination, few will learn of the sixty percent of job openings advertised through word-of-mouth from current employees, who are mostly white. Segregation confines Blacks and Latinos to regions experiencing severe job decline, without adequate means of transportation to the white suburbs where jobs are being created. Segregation deprives Blacks and Latinos of investment opportunities, because their homes do not appreciate in value as white suburban homes do. Lack of housing appreciation, in turn, deprives them of access to the credit they need to start businesses.
Segregation impedes the formation of cross-racial political coalitions, by ensuring that public services devoted to Black and Latino areas, and Indian reservations, will have no spillover benefits for whites. It facilitates police racial profiling, by creating racially identifiable neighborhoods in which those of other races look suspiciously out of place. And, while Black nationalists highlight the ways Black neighborhoods enable the Black community to capture the multiplier effects of increases in Black wealth, their far greater effect is to concentrate and hence multiply poverty, exclusion, and disadvantage. There is no credible way to achieve equal opportunity for Blacks and Latinos without breaking down the walls of segregation.
Integration is a remedy for segregation. It therefore promotes racial justice. To close the gap between the racial justice and diversity defenses of affirmative action, integration must also be shown to contribute to an educative function of schools. To see this, consider that racial segregation causes interracial ignorance, both of the distinctive life circumstances of members of different races and of how to live and cooperate together. It entails that Americans of different races are unlikely to know one another. The educative function of schools is to correct ignorance and impart practical skills. K-12 schools are not in a position to correct interracial ignorance and incompetence, because, due to neighborhood segregation, they are also racially segregated. Integrated colleges do teach middle-class Americans how to function in multiracial settings. Students of all races who grew up in segregated neighborhoods are more likely to have friends, neighbors, and co-workers of other races if they attended a racially diverse college than if they attended a racially homogeneous college.(11)
Because affirmative action is the only way to achieve racial integration in elite schools, it is justified as a necessary means to an essential educational function. Integration for educative purposes has a constitutional basis in the line of equal protection cases emerging from Brown v. Board of Education, notably in Swann, which recognized that schools are entitled to practice racial integration to teach students how to live in a pluralistic society.(12) The Brennan group naturally supported these integration cases and cited them approvingly in Bakke. Unfortunately, they failed to see that Powell's “diversity” defense was not substantively different from these integration cases, and so failed to make explicit the common ground between them.
Today, Fortune 500 corporations come the closest of any major contender in the current legal battles toward articulating an integrationist defense of affirmative action in higher education.(13) They need elite colleges to practice integration so they can draw upon an elite comfortable with multiracial cooperation. Although their arguments are explicitly in the service of global competitiveness rather than racial justice, they should not be despised by the left on that account. Affirmative action needs all the help it can get. It may be lost if supporters insist on seeing it vindicated for the right reasons. That insistence is the source of Bakke's legal vulnerabilities. Our best bet for overcoming these is to join forces around integration, as an idea capacious enough for the advocates of diversity and racial justice alike.
- Commentary and links to all cases mentioned in this article may be found at http://www-personal.umich.edu./~eandersn/biblio.htm.
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- William Bowen and Derek Bok, The Shape of the River (Princeton: Princeton University Press, 1999), 7-8, 19.
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- The Shape of the River, 42-44. Readers interested in a more complete explanation of this surprising claim may refer to my review of Bowen and Bok in The Journal of Legal Education 50 (2000): 284-305.
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- The Shape of the River, 61, 114-15, 143-45.
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- Sam Issacharoff, “Can Affirmative Action Be Defended?” Ohio State Law Journal 59 (1998), 669-695.
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- Daniel Golden, “Some high schools finagle to cram kids into top 10% of class” Wall Street Journal (May 15, 2000), A1, 8.
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- Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996).
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- In Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990).
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- Hopwood v State of Texas, 78 F.3d. 932 (5th Cir.) (1996).
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- Douglas Massey and Nancy Denton, American Apartheid (Cambridge: Harvard University Press, 1993), 74-78, 113-114, 103, 111-112, 85-87.
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- ”Expert Report of Patricia Gurin,” in The Compelling Need for Diversity in Higher Education (Ann Arbor: University of Michigan, 1999), http://www.umich.edu/~urel/admissions/legal/expert/gurintoc.html.
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- Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), 16.
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- See, for example, the amicus brief filed by thirty-two multinational corporations in support of the University of Michigan admissions policy at http://www.umich.edu/~urel/admissions/gru_amicus/32_internatl.pdf.
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from ATC 94 (September/October 2001)