Happy Opposites Day
Here's the deal: I pretend that affirmative action is dead. You pretend you've got something better.
Third-graders have long known of "Opposites Day," the fictional day once a year when everything means its opposite. But it took the deeper wisdom of adults to use this notion as a way of ending the bilious debate over affirmative action. Three big states--Florida, Texas, and California--have implemented a solution that has been heralded by conservatives and liberals, by Ward Connerly and the New York Times. The key to agreement over affirmative action, it turns out, is for everyone to say the opposite of what they mean.
In California, Connerly led the successful referendum campaign against affirmative action. Govs. Jeb Bush of Florida and George W. Bush of Texas are Republicans who have campaigned against minority preferences. All three states now forbid traditional affirmative action in admissions to state universities. Instead, they use versions of what I'll call a "high-school quota" plan. Texas guarantees admission to any senior graduating in the top 10 percent of his or her high-school class. In Florida, it's anyone graduating in the top 20 percent. In California, it's the top 4 percent.
The New York Times explains that this is "a sensible way to increase minority enrollments without relying on a strategy that takes race into account." Guaranteed admission has restored minority enrollments at Texas' Austin campus, for example, to levels not seen since 1996, when a federal court struck down the state's affirmative action program. As Mickey Kaus has noted, this whole scheme only works because, nearly half a century after Brown vs. Board of Education, America's high schools are still severely segregated. If high schools were integrated, taking the top 10 percent from each high school would produce the same racial mix as taking the top 10 percent of state high-school graduates as a whole. Since most blacks attend overwhelmingly black high schools, the result is much closer to that of taking the top 10 percent of each race.
It's doubly crazy to argue on any day besides Opposites Day that the high-school quota system has nothing to do with race. First, the purpose is explicitly racial. The whole point is to increase minority enrollment. That is why it was invented, and that is why the Bush brothers brag about its success. Second, the mechanism--piggybacking on a racially skewed arrangement (high schools)--would never pass muster with liberals or conservatives not desperately eager to look the other way.
Most of the civil rights litigation of the past few decades, in fact, is about this kind of piggybacking discrimination rather than the explicit kind. When do traditional job qualifications, such as a test or membership in a guild, amount to racial discrimination? That sort of thing. You only have to imagine a state policy applying the high-school quota system to, say, basketball scholarships--and explicitly being praised by state officials as a way to increase the number of white basketball players--to realize how empty the claims are that this arrangement avoids the alleged evil of racial preference.
Conservatives have always claimed to want admissions decisions based solely on so-called "merit-based" criteria such as SAT scores. They think it immoral to give college places to minority students who wouldn't be admitted under a merit-based policy, since this means taking away those places from white students with higher grades and SATs. But admitting black students who wouldn't be admitted under a merit-based policy is precisely what high-school quotas do. Texas had a fully "merit"-based admissions policy between 1996 and 1998. Sadly, very few minorities were admitted. Along came high-school quotas and minority admissions returned to pre-1996 levels. Meaning that the number of whites who were denied places they deserved on "merit" also returned to the same level anti-preference conservatives had been complaining about for 20 years.
Defenders of high-school quotas might argue that I'm missing the point. That this system, unlike traditional minority preferences, judges each student's performance in context. It compares achievements with the environment in which they were achieved. Moreover, it ensures that students from all backgrounds have an equal bite of the apple. All are reasonable arguments. But weren't these the arguments for affirmative action in the first place? That is, one idea behind affirmative action was always that "merit" must be judged relative to environment, so as to combat persistent historical inequalities.
Put differently, conservatives such as Bush were goaded into action by the obvious unfairness of a state-subsidized university system that more or less denies access to blacks and Hispanics. Naturally enough, conservatives dare not make this dangerous idea too explicit. They cannot afford to admit that they don't really want the results they fought for during the 21 years since University of California Regents vs. Bakke. But at heart, I suspect a large percentage of conservatives share the liberals' discomfort with an all-white educational system paid for by the state. In other words, George Bush and his supporters aren't unaware of what they're doing, namely fighting--gasp!--for racial justice. They just can't admit it.
So liberals and conservatives agree to pretend that affirmative action is dead, and that this marvelous new discovery--high-school quotas--doesn't amount to the same thing. And they lived happily ever after. Happy Opposites Day.
Bruce Gottlieb is a former Slate staff writer and chief counsel at the Federal Communications Commission; he is currently general counsel at the Atlantic Media Company.