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Affirming Affirmative Action

1.

For over thirty years America’s best universities and colleges have used race-sensitive admissions policies to increase the number of their black, Hispanic, Chicano, Native American, and other minority students.1 Conservative writers and politicians have attacked this policy of “affirmative action” from its inception, but the policy is now in the greatest danger it has yet faced—on two fronts, political and legal. In 1995, by a 14 to 10 vote, the regents of the University of California declared that race could no longer be taken into account in admissions decisions at any of the branches of that university. In 1996 California voters approved Proposition 209, which ratifies and broadens that prohibition by providing that no state institution may “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting.”2

The effect of the regents’ decision was immediate and, in the views of many of the university’s faculty, disastrous: the Boalt Hall law school at Berkeley—the state’s premier public law school—had enrolled an average of 24 black students each year for the last 28 years. In 1997 it enrolled only one, and he had been admitted the previous year but had deferred entering.3 The political campaign against affirmative action will continue, encouraged by the success of the California initiative, in other states. A similar prohibition will be presented to Washington voters next November, and others are certain to follow.

The second danger may be even more menacing. In 1978, in the famous Bakke case, the Supreme Court in effect ruled that race-sensitive admissions plans do not violate the Fourteenth Amendment of the United States Constitution, which declares that “no state may deny any person equal protection of the laws,” so long as such plans do not stipulate fixed quotas for any race or group, but take race into account only as one factor among others.4 In 1996, however, in the Hopwood case, the Fifth Circuit Court of Appeals declared the admissions program of the University of Texas Law School at Austin unconstitutional, and two of the three judges who made up the majority in that case declared that the Bakke rule had been overruled, even though not expressly, by more recent Supreme Court decisions.5

The immediate consequences of the Fifth Circuit decision were, once again, dramatic: though the Texas Law School had enrolled 31 black students in 1996, it could enroll only 4 in the following year. The Supreme Court declined to review the Fifth Circuit’s decision, which therefore stands as law in Texas and the other states of that circuit. Last October, the Washington, D.C.-based Center for Individual Rights, which had spawned the attack on the University of Texas in the Hopwood case, filed a similar suit in Michigan, arguing that the University of Michigan’s admissions program is also unconstitutional, and similar suits are expected in other states. Sooner or later the Supreme Court will be required to take some such case for review, and if the Court does overrule or substantially restrict Bakke, affirmative action henceforth will be crippled across the country. Without a constitutional amendment or another change of heart in the Court, not even a shift in the political climate could bring it back. 6

Much of the political and legal attack on affirmative action has centered on its consequences: critics say that it has lowered educational standards by admitting students who are unqualified to benefit from the education they receive, and that it has exacerbated rather than relieved racial tension. It is therefore opportune that the first comprehensive and statistically sophisticated examination of the actual effects of thirty years of affirmative action in American universities has just been published. The Shape of the River, by William G. Bowen, who was president of Princeton University, and Derek Bok, the former president of Harvard, analyzes an enormous database of records, called the College and Beyond (C&B) database, which was compiled by the Mellon Foundation, of which Bowen is the president, over four years.7

That database contains information about each of more than eighty thousand undergraduates who matriculated at twenty-eight selective colleges and universities in 1951, 1976, and 1989; these institutions are representative of the elite schools that have used affirmative action, and they range, in their selectivity in admitting students, from Bryn Mawr and Yale to Denison and North Carolina (Chapel Hill). 8 In the case of the 1976 and 1989 cohorts, the database records the undergraduates’ race, gender, high school grades, SAT scores, college majors and grades, extracurricular activities, any graduate or professional school record, and, for many, family economic and social background. It also presents information about the post-university experience of all those in the sample who answered detailed questionnaires sent out when the database was being compiled. An unusually high number of those surveyed did so—80 percent for the 1976 and 84 percent for the 1989 cohorts.

Bowen, Bok, and their colleagues have used advanced statistical techniques to analyze, so far as possible, the distinct impact of each of the great variety of variables the study isolates. They have done so in an attempt to chart the consequences affirmative action has actually had, over its now substantial career, for individual students and graduates, for their colleges and universities, and for race relations in the country as a whole. Their book is an extremely valuable sociological study quite apart from its specific findings about affirmative action, and it offers, in detailed appendices, a clear description of the complex statistical techniques it employs.

The River study has limitations, of course, which its authors are careful to acknowledge. A statistical survey, no matter how substantial its data or careful its techniques, is not a laboratory experiment, and though the authors show considerable ingenuity in finding and using controls and other checks on their conclusions, certain conclusions, as they point out, inevitably include some surmise. The study is confined to affirmative action in higher education, and its results may have little bearing on the effects of racial classifications for other purposes—in hiring, for example, or in awarding opportunities to minority-owned businesses. Most university affirmative action plans are designed to increase the enrollment of a variety of minority groups, but, except for some discussion of Hispanic students, the study presents and analyzes mainly data about black students and graduates. The institutions in the C&B list are representative of highly selective universities and colleges, moreover, and the study’s findings may not hold for less selective sectors.

The authors have not been able to answer all the questions that their data raise. They concede that they are unable fully to explain, for example, the particularly worrying fact that black students as a group underperform in college grades compared to white students in the same institution who had the same SAT scores and other academic qualifications.9 None of these limitations compromise the force of the conclusions the study reaches, however, and many of these conclusions, as we shall see, flatly contradict premises and assertions that have become staples of the affirmative action debate in recent years.

In order to gauge the importance, and the limits, of the River study, we must take care to distinguish the two main strands of that debate.10 The first is an issue of principle: Is affirmative action for blacks unfair because it violates the right of every applicant to be judged on his or her individual merits? The second is a matter of policy or practical consequence: Does affirmative action do more harm than good, because it enrolls some blacks in studies beyond their capacities, or stigmatizes all blacks as inferior, or makes the community more rather than less conscious of race? These two questions are connected, because many people think that affirmative action is fair if it does substantial good, either for those it is intended to benefit or for the community as a whole, but unfair if it does not, because the damage it does to the admissions prospects of other applicants (who include not only whites but other minorities, like Asian-Americans, whose test scores as a group are relatively high) is then pointless. The questions are nevertheless independent, however, because race-sensitive admission policies may be unfair to rejected applicants or to blacks as a group even if they achieve exactly what they are designed to achieve.

The practical question has been the more sharply debated in recent years. Advocates of affirmative action often insist that race-sensitive policies of different sorts are essential, in the short run, if we are to have any genuine hope of eradicating or diminishing the impact of race in a longer term. The most prominent critics of such programs, both white and black, reply that affirmative action has been in every way counterproductive: that it has “sacrificed” rather than helped the blacks admitted to the programs, perpetuating a sense of black inferiority among both whites and blacks themselves, and promoting black separatism and a race-conscious society rather than black integration and a genuinely colorblind community.11

Both advocates and critics rely, however, on only sketchy factual evidence to support their large claims. They cite newspaper accounts of isolated incidents of interracial cooperation—or of racial disharmony—in universities. They rely on introspective or anecdotal reports of successful blacks who credit affirmative action with having given them a chance, or blame it for stigmatizing, insulting, or cheapening them. Most of all they appeal to supposedly common-sense assumptions about how whites and blacks “must” or “may” feel or react.

It would be wrong to blame proponents and critics for relying on such thin evidence for their large claims, however, because though some excellent studies have been produced on particular issues—Bowen and Bok refer to several of these—there have been few studies of the scope needed. That is why The Shape of the River is so important: it offers much more comprehensive statistics and much more sophisticated analysis than has been available before. It has already made a considerable impact: its findings have been widely reported and discussed in the press.

We must be careful, of course, not to accept even such an apparently imposing study uncritically. The statistical analysis it offers may later be shown to be flawed. Or even more comprehensive studies may later be published that refute some or all of its main conclusions. But it would be surprising and shaming if The Shape of the River did not sharply improve the character of the long political and legal debate. Its analysis has significantly raised the standard of argument. Impressionistic and anecdotal evidence will no longer suffice: any respectable discussion of the consequences of affirmative action in universities must now either acknowledge its findings or challenge them, and any challenge must match the standards of breadth and statistical professionalism that Bowen, Bok, and their colleagues have achieved.

  1. 1

    I use the concept of “race” in this essay as it has figured in the political and legal debates I discuss. Anthony Appiah, among others, has argued that this use mistakes “race” for “skin color” or “population.” See his discussion in Appiah and Amy Gutmann, Color Conscious: The Political Morality of Race (Princeton University Press, 1996), p. 73.

  2. 2

    A federal judge in San Francisco stayed the enforcement of Proposition 209, but the Ninth Circuit Court of Appeals removed the stay, the Supreme Court refused to consider an appeal from that decision, and the proposition is now in force.

  3. 3

    See John E. Morris, “Boalt Hall’s Affirmative Action Dilemma,” The American Lawyer, November 1997, p. 4.

  4. 4

    The justices wrote a variety of opinions in the case, and the opinion of the late Justice Lewis Powell, which laid down the rule I describe in the text, came to be regarded as stating the views of five justices, which included four others who would have sustained even the quota scheme used by the Medical School at the University of California at Davis, which Powell, in concert with the remaining four justices, struck down. In the Hopwood opinion I describe later in the paragraph, two judges declared that Powell spoke for himself alone. But that interpretation has been hotly disputed (see “Recent Case: Constitutional Law,” 110 Harvard Law Review 775 (1997)) and the contrary view has prevailed in general constitutional understanding. For a discussion of the various opinions in the case, see my article, “The Bakke Decision: Did It Decide Anything?” The New York Review, August 17, 1978.

  5. 5

    Hopwood v. Texas, 78 F. 3d 932, certiorari denied 116 S. Ct. 2581 (1996). Of the five judges who decided the case, two—Judges Smith and DeMoss—ruled that Bakke has been overruled and that universities may no longer use racial classifications to produce a racially diverse student body. Another—Judge Weiner—voted to strike down the Texas Law School plan, which had been replaced by a different one anyway, on the much narrower grounds that it was not properly “tailored” to secure its stated goal of racial diversity. But he disagreed with Smith and DeMoss on the larger issue, and declined to rule that racial diversity was not a legitimate goal. The two remaining judges—Chief Judge Politz and Judge King—dissented. So only two of the five judges actually declared Bakke overruled, but the full Fifth Circuit, en banc, declined to grant a rehearing of the case.

  6. 6

    The Fourteenth Amendment applies only to state, not to private, action, and the defendants in the leading affirmative action cases in higher education have all been branches of state universities. But private universities are in effect subject to the same rules, because the Civil Rights Act forbids any university receiving any public funds or grants to discriminate against any race, and because the tax code denies tax-exempt status to any discriminating university. Any Supreme Court holding that affirmative action violates the Constitution would presumably mean that it discriminates within the meaning of these rules. After the Hopwood decision, several private Texas law schools stopped using race as a factor in their admissions practices. See “Beyond Hopwood: Texas schools consider new approaches,” The Dallas Morning News, October 26, 1997.

  7. 7

    The book’s name, and the river analogy it perhaps overworks, are taken from Mark Twain’s Life on the Mississippi.

  8. 8

    The study divided the C&B schools into three groups according to their levels of selectivity in choosing applicants. I list the schools in their selectivity groups in 1989: there were some variations in selectivity assignments in the 1976 listing. The most selective group (alphabetically listed) included Bryn Mawr, Duke, Princeton, Rice, Stanford, Swarthmore, Williams, and Yale. The next most selective group: Barnard, Columbia, Emory, Hamilton, Kenyon, Northwestern, Oberlin, Smith, Tufts, University of Pennsylvania, Vanderbilt, Washington University, Wellesley, and Wesleyan. The least selective group: Denison, Miami University (Ohio), Pennsylvania State, Tulane, Michigan (Ann Arbor), and North Carolina (Chapel Hill).

  9. 9

    The authors consider, as contributing factors to black dropout rates, poor high school education in study techniques, and continuing stereotyping in college.

  10. 10

    For a more general discussion of the distinction between issues of principle and of policy, with special reference to the affirmative action debate, see my book A Matter of Principle (Harvard University Press, 1985).

  11. 11

    See, among other material cited in The Shape of the River, Stephan Thernstrom and Abigail Thernstrom, America in Black and White (Simon and Schuster, 1997) (“The university had wanted to make minority students feel at home. But with the dramatic increase in minority numbers and with the creation of ethnic theme houses, the level of minority student discomfort actually rose.”); and Shelby Steele, “A Negative Vote on Affirmative Action,” in Debating Affirmative Action: Race, Gender, Ethnicity, and the Politics of Inclusion, edited by Nicolaus Mills (Delta, 1994) (“The effect of preferential treatment—the lowering of normal standards to increase black representation—puts blacks at war with an expanding realm of debilitating doubt, so that the doubt itself becomes an unrecognized preoccupation that undermines their ability to perform, especially in integrated situations.”).

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