Affirmative Action: Is There a Middle Way?

Christopher Edley
8:21 a.m.  Monday  10/7/96 

       We disagree on what we disagree about. The opening statement seems stunningly sympathetic to whites who supposedly face “discrimination,” while carefully correct in its concern about the (mere) “disadvantage” burdening blacks. Yes, reconcile our interests, but one is not a superior ethical claim, and the other a mere social-policy desideratum.
       Proposition 209’s destructive fraud is its deceptively simple wording, suggesting, “If you oppose discrimination, then vote for this.” But the consequences are far from simple, or plain. Moreover, saying we oppose “discrimination” means almost nothing. It masks profound disagreement about how to define that wrong, how to prove when it exists, and how to remedy and prevent it. Effectively.
       Risking majority tyranny, I’ll grant that democratic process, not courts alone, are central. Proposition 209, however, evades even the modestly deliberative character of the legislative process, in favor of the wild and woolly fray of a ballot initiative where the politics of resentment can have maximum sway. And they have. Focusing on race rather than gender is part of the strategy.
       Affirmative action critics want to debate equal opportunity versus equal results, but thoughtful proponents don’t favor results-based proportional representation: Rigid numerical strait jackets are illegal and wrong. Instead, the sharp disagreement is over “equality,” and whether data on results (employment levels, say) are helpful in making inferences about inequality of the opportunity.
       During President Clinton’s review of affirmative action, we wrestled with a series of difficult questions–choices, really–and the values at stake. First, what is “discrimination,” and does it remain an important feature of social and economic life for women and minorities? Is any attention to difference a form of discrimination?
       Second, is there a moral cost to using race or gender as one factor when making decisions? Some say it’s no worse than using income or geography or athleticism. (An odd view to me.) Others say the moral cost is so great that we should never be willing to pay it, but offer no practical remedies for here-and-now, subtle discrimination.
       Third, if you find those last two positions extreme, then context matters and the question is: Under what circumstances is attention to our differences morally justified? On this middle ground we should debate the importance of practical remedies, of diversity or inclusion, and of that seemingly abandoned ideal of integration. And we should search for the kernel of truth in what the other side says. Michael Kinsley
8:58 a.m.  Monday  10/7/96 

       I am not so much pro-affirmative action as anti-anti-affirmative action. The principle that affirmative action’s opponents are defending–called “equal opportunity,” or “color blindness” or “merit”–is so logically flawed that affirmative action survives by default. Over the next few days, I hope to persuade my fellow Correspondents of the following:
       1. Black unemployment is higher than white unemployment, and blacks still trail whites in almost every field of success except sports. This is not all the result of current discrimination, but does reflect centuries of cumulative disadvantage. If you imagine a society in which the color of a person’s skin is neither an advantage nor a disadvantage–the society opponents of affirmative action claim to want–and compare it with society as it actually exists, you have to conclude that whites are still jumping the queue a lot more than blacks.
       2. In practice, there is nothing like “equal opportunity” in this society. The problem is not merely the forms of favoritism that everyone deplores, from overt racism to hiring the boss’ son-in-law. It’s the favoritism that everyone quite rightly applauds. For example, yuppy parents devote awe-inspiring energy and money to preparing their children for life. The whites among them aren’t acting out of racism, but the effect is to leave blacks, on average, at a powerful disadvantage.
       3. Even in theory, “equal opportunity” makes no sense. Most of the characteristics we call “merit” are as beyond an individual person’s control as the color of his or her skin. This has nothing to do with the nature/nurture debate. Whether intelligence, to take the liveliest example, is genetically or environmentally determined (and whether it is one commodity or a collection of variables), it is something you or I deserve no special credit or blame for. Rewarding intelligence is how all societies, especially capitalist ones, maximize prosperity. That’s important. But that is very different from saying that intelligence, unlike skin color, gives you the moral right to favored treatment.
       4. Even leaving favoritism aside, the machinery of merit is far cruder than “equal opportunity” rhetoric would suggest. If, say, the process of deciding who gets into medical school was guaranteed to produce the best doctors, tampering with it slightly to produce more minority MDs might be a mistake. Given how uncertain that connection is, amending the process to serve a second social goal as well is less troublesome.
       5. The half-measures many affirmative action opponents say they accept–special recruitment and training programs; favoritism based on “social disadvantage” rather than race; or taking race as a “factor” but not a “fixed quota”–violate opponents’ own principles as much as full-blooded racial favoritism. Special recruitment for blacks will overlook–and thus deny opportunity to–whites who might be recruited; it also is not color-blind. “Social disadvantage” affirmative action is color-blind, but still gives a preference to the less “qualified” candidate; it also creates nightmarish questions of defining social disadvantage. If race is a “factor” at all, it will sometimes be the deciding factor, and on those occasions the white loser is victimized exactly as if there had been a quota.
       6. The outright exceptions most affirmative action opponents make to their “color-blind” principle leave little of it standing. Even an opponent as ardent as Clarence Thomas is willing to let the president take race into account in the selection of Supreme Court judges. Many opponents accept that there are other circumstances–the police, for example–where race, or diversity of races, is a legitimate qualification for the job. Most tolerate the use of reverse discrimination as a “remedy” when past discrimination has been proven. The logic of these exceptions can swallow the rule. Most affirmative action is about diversifying the workplace and rectifying past injustice.
       7. Private affirmative action is a particular trap for opponents. Is it OK for, say, a kindly millionaire to set up a scholarship program for minorities? Or for a corporation to have a special black recruitment program? If the answer is “no,” you are condemning a vast array of efforts by people who think they’re doing good. You also are inviting a vast new government interference in the private sector. But if you say “yes”–private, “voluntary” affirmative action is different–you are in fact allowing the government to discriminate as well. That’s because the government does not allow this kind of private, “voluntary” discrimination against blacks. The Civil Rights Act forbids it. Furthermore, “voluntary” is an evasion: private discrimination may be voluntary for the discriminator, but not for the discriminated against.
       Add up all these points and the conclusion I, at least, reach is that no sacred principle is violated by a bit of social engineering in favor of African-Americans. This leaves open many questions. What kind of social engineering? Some affirmative-action programs, such as preferences for government contracts, mostly benefit blacks who’ve already succeeded to one degree or another. And affirmative action in general, I imagine, does little for the people at the bottom who need help the most. Who, besides blacks, should qualify? This can turn into a victimization bidding war that brings out the worst in our politics.
       Opponents like to argue, as well, that affirmative action hurts its intended beneficiaries by stirring resentment, or even racism, among whites. This is certainly true, and it’s true whatever the merits of my argument above that such resentment is unjustified. But those who make this point are usually fanning the flames of the resentment they profess to be so alarmed about. Thomas Wood
9:26 a.m.  Monday  10/7/96 

       One cannot grant preferential treatment to an individual on the basis of his or her race, sex, or ethnicity without discriminating against someone else on that basis. This means that those who oppose the California Civil Rights Initiative (Proposition 209), which would prohibit discrimination or preferential treatment on the basis of race, sex, or ethnicity in three important areas of governmental action, take the position that it should be permissible for the state to discriminate against at least some individuals and groups on the basis of these criteria.
       Unfortunately for the opponents of Proposition 209, the issue really is that simple.
       Denial of equal rights and equal treatment under the law is such an unprepossessing proposition that opponents of the CCRI have done everything in their power to change the subject–so far, unsuccessfully.
       The main thrust of their attack has been to attack 209 as the “anti-affirmative action” initiative.
       In fact, the term “affirmative action” is not even found in the initiative. Since “affirmative action” clearly means many different things to different people, it wasn’t advisable to use the term. Nor was it necessary.
       Take, for example, an aggressive advertising or public-relations program that is designed to ensure that information about educational, contracting, or employment opportunities reaches a wide audience without regard to an individual’s race, sex, or ethnicity. It is often the case that such programs disproportionately benefit women and minorities, because in the absence of such programs, employers or the directors of programs might rely on word-of-mouth methods of recruitment or the “old boys’ network” which often work to their disadvantage. Nevertheless, affirmative action programs of the above kind are not preferential or discriminatory, and therefore would be unaffected by CCRI.
       Affirmative action in this sense seeks to provide equal opportunity by treating individuals and groups without regard to their race, sex, or ethnicity. That is the sense in which the term was used in President Lyndon B. Johnson’s Executive Order 11246.
       Proposition 209 proposes to mend affirmative action by prohibiting preferential treatment, thereby returning affirmative action to its original, non-discriminatory sense.
       On the other hand, the proposal to mend but not end preferential treatment based on race or sex, whether advocates call it “affirmative action” or anything else, is a fraud.
       Naked, blatant preferences on the basis of race, sex, or ethnicity should be ended, not mended. Stuart Taylor
9:34 a.m.  Monday  10/7/96 

       If affirmative action really seeks only to “remedy the disadvantage, the lack of equal opportunity, that many blacks suffer because they are black”–and not because they are poor, or born to single mothers, or in neighborhoods with bad schools, for example–then this may not require the kinds of preferences (“discrimination against whites”) that Proposition 209 would abolish.
       Take university admissions. Nobody believes that the University of California EVER turns down black applicants “because they are black.” Preferences there can’t be justified to counter-discrimination, but only by other rationales, like overcoming the racial and cultural legacy of slavery and training leaders for a multiracial society.
       In employment and contracting, real discrimination against blacks may be so entrenched in some places that preferences could theoretically serve as a rough offset, to balance the scales and approximate genuinely race-blind results. But preferences so rationalized tend to become entrenched and self-perpetuating, and look more and more like simple discrimination against whites.
       The real reason preferences have such a passionate constituency is that, because of our legacy, the percentage of blacks who could win coveted positions in our society in meritocratic, race-blind competition would be shockingly small even if all discrimination vanished. So there’s an understandable but corrosive urge to rig the game. The question is whether the benefits of rigging it (integrating our institutions, creating a sense of hope and progress) outweigh the costs (unfairness, white resentment, black sense of racial entitlement, devaluing real black achievement, heightened race-consciousness, economic inefficiency, and systematic dishonesty and Orwellian doublespeak about what’s being done). More and more, I tend to doubt it, though I shrink from cold-turkey withdrawal, which would impose serious costs of its own–primarily, the PERCEPTION among blacks of retrogression. I’m not sure yet how I’d vote. Glenn Loury
9:43 a.m.  Monday  10/7/96 

       As President Clinton has put it, famously, we can either “mend” or “end” affirmative action. He proposed to “mend” it, reasoning that the facts of American history, from slavery onward, demand some concerted effort to promote racial equality, and arguing that affirmative action programs are a key component of the efforts now required. By contrast, the proponents of the California Civil Rights Initiative (CCRI) aim to “end” affirmative action in their state. Their campaign is based on the simple idea that any sort of discrimination is wrong, whether it be on behalf of or against a formerly subjugated minority.
       As with many political issues, how one frames this question is critical to the public response. If asked whether disadvantaged minorities should be given help so that they may be able to compete on the merits, most Americans, being decent and sensible people, say, “yes.” When asked whether it is fair that blacks but not whites be protected from racial discrimination most Americans, being decent and sensible people, say, “no.” Thus, the president has not been hurt in his campaign for re-election by his liberal position on affirmative action; indeed, his lead in California is astronomical. At the same time, Proposition 209 (CCRI) also enjoys a large lead in the California polls, and will almost certainly become law.
       The problem here is that, while affirmative action desperately needs to be reformed, the political realities are such that significant change is not likely to come from the bureaucrats who develop and administer such programs, absent dramatic, outside intervention of the sort which CCRI represents. The Clinton Administration’s “mending” efforts, for example, have been quite minimal, and driven totally by federal judicial mandates. In California, the regents’ attempt to limit preference in the UC system has been openly resisted by some faculty and administrators who disagree with the regents’ position. Moreover, for many years now reasoned criticisms of particular affirmative action programs–like an admissions policy at UC Berkeley which results in a 300-point racial gap in SAT scores, or a race-based procurement policy which drives white men out of certain lines of business–have been met not with reasoned responses, but with hysterical charges that the critics are racists. Opponents of Proposition 209 have continued in this ignoble tradition. As a result, many who would agree with the sentiment that reasonable efforts to reduce racial inequality are justified, will nevertheless climb on the bandwagon against “preferences.”
       I do not think the color-blind absolutism which undergirds advocacy for Proposition 209 is a logically coherent or morally correct position. Yet, if I had a vote to cast in that contest, I well might cast it on behalf of the proposition. As I hope to explain more fully later in this interchange, I think the proposition is too extreme. Race is a reality in this society; its social meaning is so powerful that sometimes the state cannot discharge its essential responsibilities–like educating the young, or maintaining order in the cities–without taking race into account. The legitimacy of public institutions–including the courts–depends upon their being perceived as racially representative. The notion that any recognition of race by a state agent is presumptively a violation of some ethical canon is absurd. Yet, by framing the question as they have, the promoters of Proposition 209 have, for the first time in American history, brought the question of affirmative action out into the sunlight, for democratic deliberation and decision. This is an important accomplishment. In the aftermath of its passage, instead of defending preferences “by any means necessary,” the advocates of affirmative action around the country will have to get down to cases, and make sensible arguments for the modest, developmentally focused initiatives which a majority of Americans are likely to find prudent and acceptable. Herb Stein
2:15 p.m.  Monday  10/7/96 

       It seems to me that the panelists, except for Taylor who is not yet sure how he would vote, end up in pretty much the same place. They all recognize that some public policies to raise the condition of blacks are desirable or, at least, acceptable, but they also recognize that some policies with that objective are not acceptable or, at least, not to be insisted upon. So, the issue becomes one of what, how much and when. I quote from the other four panelists (other than Taylor):
       Edley: “Under what circumstances is attention to our differences morally justified? On this middle ground we should debate the importance of practical remedies, of diversity or inclusion, and of that seemingly abandoned ideal of integration.”
       Kinsley: “Add up all these points and the conclusion I, at least, reach is that no sacred principle is violated by a bit of social engineering in favor of Afro-Americans. This leaves open many questions. What kind of social engineering?”
       Loury: “The advocates of affirmative action around the country will have to get down to cases, and make sensible arguments for the modest, developmentally focused initiatives which a majority of Americans are likely to find prudent and acceptable.”
       Wood: After describing a public relations program to make more information available to all, which would especially benefit minorities who would otherwise be especially unaware of their opportunities, he says, “Nevertheless, affirmative action programs of the above kind are not preferential or discriminatory, and therefore would be unaffected by CCRI [Proposition 209].”
       By what standard should we judge the acceptability of policies designed to assist blacks, or other minorities? I would suggest that one standard is objectivity, impersonality and diffusion. We differentiate (discriminate) between rich and poor through the income tax. Although there is argument about how much of this to do, only a fringe think that it is unfair to do that. But if we said that we are going to take a certain amount of money from only one identifiable person, J.P.Morgan, and give it to one other identifiable person, Tom Cratchit, that would seem to be unfair. The problem with some affirmative action programs, as in university admissions, may be that the winners and losers are identifiable and arbitrarily selected.