Affirmative Action: Is There a Middle Way?

Affirmative Action: Is There a Middle Way?

Dec. 1 2004 10:57 AM

Affirmative Action: Is There a Middle Way?

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Thomas Wood
8:11 a.m.  Friday  10/11/96 

       As Herbert Stein has put it, Glenn Loury has made a "case that there are situations in which a 'minimal,' 'reasonable,' or 'slight' degree of racial or gender ... specialization is essential to the effective performance of an institution's function and should not be banned."
       Loury has also asked whether it is possible to limit racial or gender preferences that are employed for this purpose in a reasonable fashion, without opening the door to excessive and unjustifiable schemes of racial or gender preferences.
       I do not believe that this is possible, but I set that interesting and important question aside for another occasion. Here I shall respond only to the first point. That is, I shall argue that a scheme that (per impossible) permits only minimal or slight degrees of racial preference ought to be rejected.
       The first point to be made is that any use of racial classifications or preferences, to any degree whatsoever, undermines the fundamental principle of civil rights, which is that individuals should not be treated differently on the basis of their race, sex, or ethnicity. Compromising this principle to any extent whatever is indeed a serious matter, because the nation's commitment to the civil-rights principle will be undermined to the extent that it is not applied consistently.
       Secondly, I think that the typical rationale that is provided for even a minimal or slight degree of racial preference fails to withstand investigation.
       It might be useful in this connection to consider the legal concept of a "bona fide qualification," which the U.S. Civil Rights Act invokes in the case of sex, but not in the case of race--and for good reason.
       Common sense tells us that there are some very limited circumstances where it should be permissible to treat individuals differently on the basis of their sex. For example, there is much to be said for sex-segregated toilet facilities and for sex-segregated sports teams, and for "bona fide occupational qualifications based on sex" that permit correctional facilities to minimize transgender body cavity searches by prison guards. That is why Proposition 209, which follows very closely Title VII of the U.S. Civil Rights Act, has included a provision which prevents its own strong ban against sex-based discrimination from striking down existing laws which already permit an exceedingly narrow class of sex distinctions (without in any way broadening them, as some critics have alleged).
       While the U.S. Civil Rights Act does carve out an exceedingly narrow range of exceptions for sex, it does not do so for race, and neither does California Civil Rights Initiative, and for good reason. One can think of a very small number of cases where sex needs to be regarded as a "bona fide qualification" in public employment, education, or contracting, but how could the color of a person's skin be a bona fide qualification?
       It can't, and that is what is wrong with even "limited" or "restrained" uses of race as envisioned by Justice Powell in his opinion in the Bakke case, and here in this forum more recently by Glenn Loury, who has suggested that for the pedagogical purposes of the Kennedy School of Government and other educational institutions and programs, the race of an applicant can be a "kind of qualification."
       The problem facing the Powell/Loury view about "diversity" (if I may call it that) is that it is impossible to find a viewpoint, opinion, or characteristic which a university should care about for which race is a proxy. (The same, by the way, is true of gender, but I have already pointed out that there are other kinds of reasons why very narrow exceptions have to be made for "bona fide qualifications" based on sex.)
       Proposition 209 itself can be taken as an example. The chair of the campaign is an African-American male. The two co-chairs are white women. The two authors and proponents are white males. We have prominent spokespersons and endorsers of the initiative of all races and ethnicities. The same is true of the opponents of CCRI. This confirms what pollsters have known for a long time--that opinions on even this issue do not break down neatly along racial or gender lines.
       The same is true for higher education. For years, the Higher Education Research Institute (HERI) at UCLA and the American Council on Education (ACE) have been conducting a study of the effects of college education. In its latest report, the study found that there is no correlation whatever between the racial composition of an institution's student body and any of the eight-four cognitive and non-cognitive student outcome variables the study considered. If race were a bona fide qualification in some sense, one might expect the racial composition of an institution's student body to have some effect on at least some outcome variables. But there is none. This is evidence--if evidence be needed--that race is not, and should not be considered to be, a bona fide qualification for anything in higher education.
       The view that race can be considered as one factor that might be essential to an educational institution's pedagogical purpose is typically associated with racial theorists who maintain that "race matters." Loury has stood this view on its head by suggesting that counting by race might be necessary, or at least desirable, as an integral part of an effort to show that race does not matter.
       I don't find the example convincing. As I've pointed out, it is the advocates of preferences who maintain that there is a "black thing" and a "white thing"--ineluctably different ways of viewing the world--and never the twain shall meet. But no sensible person can really believe this, and it is doubtful that even those who espouse this view really believe it (as opposed to having powerful political motivations for pushing it).
       What does seem to be at issue on campuses, unfortunately, is whether blacks and Latinos can qualify for elite educational institutions to the same degree as whites and Asian-Americans do. This is quite a different matter. It seems to me that applying lower academic standards on the basis of race does not further the laudable goal of proving that blacks and Latinos can do so: it actually impedes it.
       Interestingly, the HERI-ACE study I referred to above found a statistically significant correlation between campus racial tensions and an institution's commitment to "diversity" and "multiculturalism" (and with them, no doubt, preferential affirmative action). According to the authors of the study, the correlation is to be explained by the fact that these "committed" institutions are responding to pre-existing racial tensions. But the study provides no evidence to support this hypothesis. Furthermore, given what we know about human psychology--perhaps especially when it comes to racial matters--it would seem more likely that the direction of causation runs the other way, because asserting that race matters, and treating people accordingly, is almost guaranteed to make people more, rather than less, race-conscious.
       I mentioned in Wednesday's entry that the real root of the problem is the continuing disparities between the educational achievements of different racial and ethnic groups. To address this problem, we need to find out what measures at the K-12 level are effective in improving the educational outcomes of economically and educationally disadvantaged students, regardless of their race, sex, or ethnicity.

Michael Kinsley
8:37 a.m.  Friday  10/11/96 

       If what Herb Stein calls a "flexible rule of reason" approach to affirmative action takes some of the poison out of the debate, I'm all for it. Herb is right to note that in a pluralist democracy there are a limited number of chips to spend on any social cause, however worthy. However, as a matter of logic, Chris Edley--and Justice Powell in the Bakke case--are dreaming when they insist there is a principled difference between a "rigid" and a "flexible" approach. To be sure, affirmative action is misguided if it leads to the selection of incompetent or unqualified people. But the premise of affirmative action must be that there is a range of "qualification" within which some wiggle-room is tolerable (or that the machinery that determines "qualification" is too crude to insist that candidate No. 256 is definitely superior to candidate No. 257). Assuming a pool of "qualified" candidates, it makes no difference in principle if affirmative action is "rigid" or "flexible ... to be compared and traded off" with other factors. It's a yes-or-no game here: Someone can't partially get a job--or lose one--due to affirmative action. Either affirmative action leads to someone winning out over someone else (both of them presumably "qualified") or it doesn't. When it does, the effect might as well have been a quota of one: Someone has gotten, and someone else has lost, a job because of race.
       But actually I'm glad I have so much trouble persuading people of this point, because if I succeeded, it would make the compromise our moderator is guiding this committee toward all that much harder to achieve.

Glenn Loury
10:09 a.m.  Friday  10/11/96 

       In view of the limitations of time and space, I must leave for another occasion discussion of my promised scheme to keep the use of racial preferences within "reasonable" and "minimal" bounds. Also, while I plainly disagree with Tom Wood's absolutist position, I do not want to expend my final comments here on what would surely be a futile effort to reason with him, or his like-minded compatriots in the CCRI crusade. Suffice it to say that I find compelling Michael Kinsley's argument about misplaced priorities.
       Let 10 people apply for a teaching position at a state university in California, nine whites and one black. Let the black applicant succeed, due to affirmative action. We now have nine angry white male "victims of racial discrimination." Yet the truth is that eight of those nine are really victims of their own inadequacies, as they would have been rejected in any case. Who would not prefer victimization as an account of his frustrations in life? This psychological propensity may go some way toward accounting for the curious moral priorities reflected in today's "civil rights" crusade.
       Nevertheless, despite my various arguments to the contrary, my main inclination is to oppose the use of racial preferences, for reasons quite apart from defending the civil rights of white men. Preferences can undercut the incentives of blacks to develop their competitive abilities. Consider a workplace where a supervisor, keen to promote blacks where possible, monitors his subordinates' performance and bases his promotion recommendations on these observations. A preference in this context might well mean ignoring minor deficiencies in the performance of blacks, recommending them for promotion when whites would not be so recommended. But, such behavior denies black workers honest feedback on their performance, thus undermining their ability to identify and correct problems with their work, and encouraging them to think they can succeed without the same degree of proficiency as whites know they must attain.
       Consider students applying for admissions to professional schools which are, due to affirmative-action concerns, eager to admit a certain number of blacks. To do so, they believe they must accept blacks with test scores and grades below those of some whites whom they reject. With most schools following this policy, the black students learn that the performance needed to gain admission is lower than that which white students know they must attain. The result of these incentive differences could be that black students exert less effort than whites, earning lower grades and test scores, but retaining their prospects of being admitted to the professional schools. In this way, the schools' belief that lower admissions standards are needed for blacks becomes a self-fulfilling prophecy.
       The problem here is that when black representation is pursued with lower standards, this can reduce the incentive or ability of blacks to develop their skills. However, if the employers and schools in question sought greater black participation by holding up a common standard of excellence while exerting a concerted effort to enhance black performance, this problem would be avoided. (This, for example, is what the U.S. Army does with great success, as its endeavors to increase the number of blacks in the higher ranks.) Like the targeted recruitment of black applicants to a nearly all-white police force, such a targeted effort at performance enhancement among blacks is definitely not color-blind behavior. It involves--let's put it plainly--racial discrimination. It presumes a direct concern about racial inequality, and allocates benefits to people, in effect, on a racial basis. Yet, I believe that many of those in California about to vote "yes" on Proposition 209 would agree with me that, in our society at this point in history, undertakings like the Army's programs to develop black talent in the ranks are prudent and necessary things to do. What distinguishes this "developmental affirmative action" from the more familiar "preferential affirmative action" is that it takes the fact of black underdevelopment in late 20th century America seriously; it understands this as a social problem of importance to the entire nation; and it seeks to address the problem directly, rather than to hide from it under cover of lower standards for blacks, or by waving an ideological banner of "civil rights for all."
       A state university system which consumes billions of taxpayers' dollars should not accept with equanimity the virtual exclusion of an important, historically subjugated population subgroup from its academic programs. Purists may find it an unacceptable racial discrimination that a policy would be created which provisionally admits some limited number of racial minority applicants to the university, conditional on their raising their math and verbal aptitudes to genuinely competitive levels after a year or two of (non-transferable) study at a less-exclusive institution. But, were a person more interested in seeing social justice done than in making debating points, he would either seize upon such a proposal, or advance a better one capable of achieving a similar outcome.

Thomas Wood
1:53 p.m.  Friday  10/11/96 

       CCRI's prohibition against discrimination and preferential treatment is limited to the criteria of race, sex, color, ethnicity, and national origin because those are the criteria that are covered in the U.S. Civil Rights Act, the nation's landmark civil-rights legislation in this century. It was our intention to track very closely the meaning and purpose of that act, before the courts had (quite implausibly and even preposterously) construed it to permit "benign" or "affirmative" discrimination.
       Proposition 209 does, however, depart from the U.S. Civil Rights Act's list of prohibited criteria in two respects. First, it adds the criterion of "ethnicity." This seemed appropriate, since civil rights discussions today often do mention the very closely connected criterion of ethnicity in addition to the other criteria.
       The second difference is that we have, on the advice of leading constitutional scholars, dropped the category of religion. The advice we received was that leaving religion in Proposition 209 could raise problems in connection with what constitutional scholars call the "religious accommodations" issue. As it turns out, the U.S. Civil Rights Act has some rather complicated language to ensure that necessary and proper exceptions are made in this area--for example, ensuring that religious minorities are treated equitably in the observance of religious holidays like Buddha-Jayanti or Ramadan or Yom Kippur. Since religious preferences have not been a problem in the way that racial and gender preferences have been, and since we wanted to keep the text of the initiative short, we followed the advice of these scholars and simply dropped religion from the list of prohibited criteria.
       Proposition 209 will not preclude the state of California from constitutionalizing prohibitions against discrimination on the basis of any other criterion. But we wanted to stick to the criteria covered in the U.S. Civil Rights Act, over which there has been an overwhelming national consensus for several decades now.
       What does the U.S. Civil Rights Act say, in effect? It says: If you think it is good agricultural policy to discriminate against beet farmers in favor of artichoke farmers, you may do so. If you want to tax the citizenry and support elite educational institutions which disproportionately benefit an economic and educational class that needs this kind of welfare the least, you may do so. But there is one thing that you cannot do: You cannot classify, categorize, favor, or disfavor individuals who apply for the benefits of these programs on the basis of their race, sex, or ethnicity. That is what civil rights means in this country, and that is the issue that CCRI addresses.
       Finally, let me say once again that in my view the major roadblock to continued progress towards greater diversity and inclusiveness in America is the persistence of significant educational disparities between some minorities, including blacks and Latinos, on the one hand, and whites and Asian-Americans on the other. Above all else, a frontal assault needs to be made on this problem.
       Let me begin my necessarily brief discussion of this matter with school vouchers. I do not have a position on school vouchers, and neither does CCRI. But I can safely say, on the evidence before me, that the nation needs to look very closely at the outcomes and evaluations of ongoing school voucher reform experiments. I believe that this is true, not only for educators and parents, but also for those who care about civil rights, fairness, and racial justice in a broad sense.
       Paul Peterson of Harvard University recently analyzed the data for a control group vs. experimental group test of the Milwaukee school voucher experiment. He reports that private schools outperformed their public school counterparts, and by wide margins. Extrapolating from these findings, Peterson has concluded that an aggressive use of school vouchers or school choice could eliminate anywhere from one-third to one-half of the disparities in educational achievement between blacks and whites in this country in one stroke.
       Peterson's recent findings corroborate what is by now a rather large body of evidence that private schools (particularly parochial schools) have done an outstanding job of educating economically and educationally disadvantaged students, including minority students. The country needs to determine why, and to do so quickly.
       Peterson's report of his findings does not specify the factors which might account for the success of Milwaukee's private schools in educating disadvantaged minority students, but from my general familiarity with the literature I would be surprised if he did not believe that it has something to do with the fact that these schools deliver programs, even to the most disadvantaged students, that are rigorous and academically demanding.
       Those who wish to defend public schools against what they perceive to be the threat of school vouchers need to support similar reforms in the public schools. Fortunately, there has been progress on this front. The most dramatic evidence, of course, is provided by Jaime Escalante of Stand and Deliver fame. When Escalante produced more high-scoring students on the Advanced Placement exam in calculus from Garfield Public High School in East Los Angeles than elite, expensive prep schools like Choate and Exeter, he did not do so by setting lower standards for his students than for the students at other schools. The validity of Escalante's pedagogy has been confirmed in other public school settings as well, including the AVID program here in California and the Calvert school program in Baltimore. Interested readers can learn more about them by contacting the Institute for Justice in Washington, D.C., which is tracking these projects.
       The success of these educational reforms has made me deeply suspicious of the view that the nation will never have blacks and Latinos in its powerful institutions in significant numbers without giving them preferential treatment on the basis of their race. On the contrary, Americans should be encouraged that programs and reforms that refuse to lower standards for them are precisely the ones that are producing the best long-term results.
       We don't need to compromise on civil rights in order to solve the nation's social problems. In fact, compromising on civil rights will make it more, rather than less, difficult to deal effectively with the problems that we do have.

Herb Stein
3:02 p.m.  Friday  10/11/96 

       Despite what Kinsley says, this moderator is not guiding this committee toward compromise. There is and will be compromise, but just what compromise there will be or should be I don't know.
       We are all dealt unequal hands at birth. Some of these inequalities will seem more unjust than others. People will differ on which inequalities are most unjust. Government cannot correct all these injustices, partly because society differs in its assessment of which injustices need correction the most, and partly because of inevitable limitations on the effectiveness of government. The problem for government policy is to deal with the injustices that the society finds most compelling and that government can be most effective about.
       So I can only say which injustices are most compelling to me and which I think public policy could do most about. I think that a baby born black in America has been dealt a worse hand than a baby born white, all other things equal. But I think that a baby born black to an unmarried teen-age high-school dropout in a ghetto neighborhood has been dealt an enormously worse hand than a baby born black to an upper-income married couple living in Potomac, Md. Also, in my opinion, a baby born white to a teen-age unmarried high-school dropout in a ghetto neighborhood has been dealt a worse hand than the black baby in Potomac, Md. I would like to correct all these inequalities, but the ones that weigh upon my moral and aesthetic scales the most are the ghetto babies, and especially the black ones. So, if I have limited political capital to expend, I would concentrate it on the ghetto babies. If necessary, I would concentrate on the black ghetto babies, but I believe that is neither necessary nor possible. I cannot imagine a policy to assist underclass children that concentrates on blacks and ignores whites. I can imagine that a policy for the underclass would have aspects that applied particularly to blacks. For example, the policy might try to get all the children to speak "white" English.
       Where does this leave affirmative action? I am convinced by Loury's examples of situations where the effectiveness of an institution is enhanced by some preference to blacks or women--black policemen or women gynecologists, etc. I don't consider such preferences affirmative action. I think of preferences that are not intended to maximize the effectiveness of the institution but to benefit the preferred parties. I do not object to that, within limits. What we know about maximizing anything is pretty crude. As my son always says, the main requirement for doing a job is having the job. But experience shows that this kind of thing does not stay within limits and tends to be pursued to an extent that not only degrades the institution but, what may be worse, offends the majority population and makes it unwilling to do what can be feasibly done to correct the disadvantages of the minority. Both Loury and Edney have recognized the difficulty of keeping affirmative action within limits that they consider reasonable but have offered no prescription for doing that. Until they do, I would not push for affirmative action.
       I close with a little text from my mentor, Henry Simons:
       "... social morality is, like truth, a matter of voluntary consensus. ... Society is always right--provided it is the right kind of society. The social processes of a free society are, if not infallible, the only reliable means to moral truth and the best means to security under law."
       The Committee of Correspondence will not meet next week and will resume Oct. 21.