The fortunes of affirmative action seem to be at their lowest ebb since President Johnson first invoked the phrase 36 years ago, in an executive order banning discrimination in hiring. In recent years, race-conscious policies intended to increase the representation of blacks and Hispanics in higher education and in public employment have been abandoned by some leading universities, outlawed by voter initiatives in California and Washington state and wounded by court rulings across the country.
The latest setback took place in Michigan late in March. Judge Bernard Friedman of the U.S. District Court in Detroit ruled that the admissions system at the University of Michigan Law School was illegal because it favored black and Hispanic applicants. The decision, the implementation of which is on hold pending appeals, came less than four months after another federal judge in Detroit, Patrick Duggan, handed defenders of affirmative action a rare victory, upholding the university's even more race-conscious undergraduate admissions policies. One or both cases could end up before the U.S. Supreme Court -- which, given its current leanings, may well deliver a death blow to racial and ethnic preferences in college admissions.
In a time when ideological polemics are generally muted, few issues arouse as much intensity as affirmative action -- particularly when it comes to educational opportunities, long seen as the key to a better life. Yet, despite the passions, the debate remains hobbled by taboos. Even conservatives often soft-pedal their opposition to racial preferences for fear of being tarred as racist: It's telling that when the topic came up in one of the presidential debates, George W. Bush gave an evasive answer proclaiming his support for "affirmative access."
Affirmative action's defenders, too, have always thrown a smoke screen around the subject. For the most part, they staunchly and indignantly deny that there are any such things as quotas, race-based admissions or lower standards for minority applicants. Schools, they say, take race into account as only one of many factors in selecting students -- just like geographical origin, community service or special talents and skills -- as they are permitted to do under the Supreme Court's 1978 ruling in Regents of the University of California vs. Bakke.
Yet, apart from the question of whether government institutions should sort citizens by race to any degree at all, the claim that race has been merely a "plus factor" in admissions to public universities does not withstand factual scrutiny -- which is why universities have long tried to keep these policies under wraps. Whatever the moral and practical virtues of diversity, one may legitimately ask if any system that requires Soviet-style secrecy and deception in order to function can fail to have a corrosive effect, not only on the academic climate but on race relations.
The two lawsuits against the University of Michigan (filed by white applicants who claim that they were unfairly denied admission while less-qualified blacks and Latinos were accepted) provide some of the strongest evidence that at many schools, race or ethnicity has not been merely one of many ingredients in admissions but often the key ingredient.
Until 1998, applicants to the undergraduate program at the university were evaluated on a chart based on SAT scores and grades, with separate criteria for different groups: Thus, with an SAT score of 930-1000 and a grade-point average of 3.2-3.3, white or Asian applicants were automatically rejected while blacks and Hispanics were accepted, sometimes into remedial programs.
Meanwhile, the administration flatly denied the use of differential race-based standards for judging applicants. Finally, in 1997, philosophy professor Carl Cohen (no right-winger but a former director of the Ann Arbor chapter of the American Civil Liberties Union) used the Freedom of Information Act to compel the university to release its admissions data, including the evaluation charts.
Faced with litigation and adverse publicity, the University of Michigan replaced the charts with a point system that emphasizes grades, downplays standardized-test scores and awards additional points for "other factors." An "outstanding" essay is worth three points, and up to five can be given for extracurricular achievements or for "leadership and service" -- but "underrepresented racial/ethnic minority identification" earns 20 points. (By the way, university officials continue to deny that there are any racial dual standards in admissions.)
At the University of Michigan Law School, the race-conscious criteria have been less clearly defined but are just as obvious. For a black applicant, the chance of being admitted is three to 50 times greater than the chance of a white applicant with similar LSAT scores and college grades. In 1995, all African-American applicants with an LSAT score of 159-160 and a GPA of at least 3.0 were accepted, compared with just 2 percent of whites and Asians. Hispanics also benefited from preferential treatment, though less markedly.
As Judge Friedman noted, the law school's policies are "practically indistinguishable" from a quota system, which Bakke expressly forbids. In 1975, the school adopted a policy reserving 10 to 12 percent of slots for blacks, Latinos and Native Americans. Today's guidelines only require admitting a "critical mass" of minorities; as it happens, that mass has consistently hovered between 10 and 12 percent.
The situation is similar at other selective schools. Indeed, defenders of racial preferences implicitly acknowledge the central role of race when they fret that without preferences, minority enrollment at top universities and professional schools would plummet. That's what happened when the University of California adopted colorblind admissions a few years ago. The numbers of blacks admitted into the freshman class at UC-Berkeley fell by more than 50 percent; for Hispanics, the drop was 38 percent. At Berkeley's Boalt Hall Law School, the entering class of 1997 had one African-American student, down from 20 the previous year.
Originally, affirmative action was explained as a temporary measure to help blacks overcome the obstacles posed by racial oppression and social disadvantage. But that justification has become hard to sustain 37 years after passage of the Civil Rights Act, when the beneficiaries of racial preferences in higher education are often children of middle-class professionals. So defenders of affirmative action have taken a new tack: Now, the argument is that diversity on campus enriches the experience of higher learning for everyone, and is so essential an educational benefit that it justifies racial classifications.
The "diversity" rationale -- which was embraced in Bakke by only one of the five justices who voted for affirmative action, Lewis Powell -- may or may not have a solid constitutional basis. But does it have a basis in fact? The University of Michigan has touted an "Expert Report" by its psychology department chairwoman, Patricia Gurin, purporting to prove the benefits of diversity. Yet, as a recent paper published under the auspices of the National Association of Scholars (which opposes racial preferences) points out, Gurin substitutes apples for oranges: Mostly, she analyzes the impact of diversity-related activities such as participation in racial awareness workshops or ethnic studies classes, not of the racial composition of the student body. Moreover, while she finds that "diversity experiences" tend to have a positive, if small, effect on the quality of education, her measures of quality are based solely on students' self-assessment of their intellectual growth in college. Gurin's own data suggest, as does a larger study by psychologist Alexander Astin, that actual racial diversity has no effect on outcomes of education, be it academic achievement or civic engagement.
Does this mean that racial diversity is not a desirable goal? Hardly. In a nation that embraces the ideals of equality and yet must live with a shameful history of racism, no person with a conscience can be unperturbed by the scarcity of African-Americans in our best colleges. The growth of the black middle class and greater racial integration can be seen, in part, as benefits of affirmative action. But what about the costs?
According to advocates of colorblind policies, these costs include not only the injustice to white and Asian victims of reverse discrimination but the harm that affirmative action in its present form is doing to its original goals of racial equality and integration. Racial preferences, critics say, have the perverse effect of helping keep blacks in the back of the bus -- and perpetuating the very racial gap in educational achievement that makes it impossible to achieve diversity without lowering standards.
The argument that racial preferences stigmatize their own intended beneficiaries, sending them a none-too-subtle message that they can't compete with members of other groups, has been made by a number of black conservatives, from Clarence Thomas to Shelby Steele. It is given a new twist in the powerful, controversial recent book "Losing the Race: Self-Sabotage in Black America" by John McWhorter, a black associate professor of linguistics at Berkeley.
McWhorter's principal concern is with the persistent educational underachievement of black Americans. The standard explanations of socioeconomic disadvantage and underfunded schools don't hold up. Only 14 percent of black college students are from poor families. More depressing, in 1995, black students from homes with an annual income of $70,000 or more had lower SAT scores, on average, than white students with a household income below $10,000, and black students with at least one parent who had a graduate degree scored lower than the children of white high school graduates. It's not just on the SAT that the academic gap shows up. In Shaker Heights, Ohio, a racially integrated, affluent suburb with high levels of school funding, black children make up about half of the students but fewer than 10 percent of the top fifth of their class and 90 percent of the bottom fifth.
Racism isn't the explanation either, argues McWhorter, since the black children of West Indian and African immigrants generally do quite well in school (a fact that should also rebut theories of genetic racial differences in intelligence). In his view, the real problem is that African-American culture is infected by a "virus" of hostility toward learning and academic excellence -- a product of internalized racist stereotypes of black mental weakness combined with distrust of the values of the dominant culture. A smart, bookish black kid risks being taunted for "acting white."
The result, according to McWhorter, is that even middle-class black students who seem to value educational opportunities often perform far below their potential -- not because of laziness but because of a "cultural disconnect," a lack of commitment to schoolwork.
McWhorter believes that some affirmative action is needed in public contracting and the corporate establishment, where racism can still hinder black advancement, but strongly opposes preferences in education. "Lower standards in college admissions only preserve the problem," says McWhorter, interviewed by phone from his Berkeley office. "If a culture is already saddled with a legacy of racism that makes it distrust school, the last thing you want is a policy that doesn't expect the best of its young people. Lower the bar, and you're encouraging them to only do as well as they have to."
Some corroboration for McWhorter's thesis comes from the testimony in the hearing on the University of Michigan Law School's admissions policies -- ironically, offered by the university to support its claim that LSAT scores don't reflect merit. Jay Rosner, executive director of a foundation that provides LSAT preparation courses to minorities, testified that despite outreach efforts and reduced fees, black students generally show far less interest than whites in taking these courses, to such an extent that he once had trouble filling the 15 seats in a prep course at Howard University.
One might object that cramming for the LSATs has nothing to do with real qualifications. But maybe the attitudes Rosner described do reflect on qualities that are relevant to success in law school, be it study habits or motivation.
The system of racial spoils not only fails to challenge black students but also puts them in an environment where they are likely to lag behind their white and Asian peers -- which is bound to have a further demoralizing effect. In their much-hyped 1998 book "The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions," William Bowen and Derek Bok (former presidents of Princeton and Harvard, respectively) brush this issue aside, pointing out that "77 percent of black graduates who ranked in the top third of their class were 'very satisfied' with their undergraduate educational experience."
But that's not very comforting, considering that some 200 pages earlier, Bowen and Bok acknowledge that the average black student at the 28 schools whose data they examined ranked in the bottom quarter of their class. And those in the top third would have had a good chance of being admitted under race-neutral standards.
What's more, black students at the institutions in Bowen and Bok's sample were much more likely than whites to drop out -- 21 percent vs. 6 percent. At some schools, attrition has been even more dismal. At Berkeley before the repeal of preferences, the black dropout rate was 42 percent, triple the rate for whites.
Affirmative action opponents such as Stephan and Abigail Thernstrom, authors of "America in Black and White," argue that minority students are far better off at schools where they can get in without special treatment. For many, this means less prestigious schools; under colorblind admissions in the University of California system, African-American and (to a lesser extent) Latino enrollment has shifted from UCLA and Berkeley to UC-Santa Cruz and UC-Davis. At the third most selective school, UC-San Diego, black admissions are down about one-fifth from the affirmative action era. Yet, as University of San Diego law professor Gail Heriot reported in the Weekly Standard, black students are now about as likely as whites to make the dean's list, from which they were virtually absent five years ago. Under racial preferences, some of those UC-San Diego honors students might have been floundering at Berkeley instead.
In "The Shape of the River," Bowen and Bok try to counter this argument by citing numbers that show that black students who attended some of the most elite institutions, such as Harvard or Princeton, graduated at higher rates than blacks with similar academic credentials who went to less challenging schools. But the comparison may be meaningless; as the Thernstroms argue, the elite schools are set up in such a way as to make it difficult to get in and virtually impossible to flunk out. And it is surely absurd to suggest, as Bowen and Bok do, that a drop in the numbers of blacks at top-tier colleges and universities will seriously damage the black middle class.
The suggestion that more black students "belong" at second-tier colleges may seem offensive. But isn't it even more condescending when Bowen and Bok declare that the performance of minority students admitted to top schools thanks to affirmative action can't be considered "disappointing," despite a "very large" racial gap in grades?
What's more, while preferences make the campus population more diverse, they may also exert a pull toward racial Balkanization rather than integration. At many colleges and universities, "diversity" dogma includes programs that smack of separatism -- special minority housing, special counseling, separate freshman orientation sessions and workshops -- and often encourage students to develop an identity rooted primarily in race.
The pitfalls of identity politics are illustrated by the rather confused rhetoric about the viewpoints and perspectives that minorities are said to bring to the classroom. Often, the clear implication is that there is a distinct "black [or Latino] point of view." On the other hand, diversity champions often deplore the pressure on black students to express "the black perspective" in class discussions. Yet another claim, made at the hearing before Judge Friedman by some of the witnesses supporting the University of Michigan, is that the presence of a "critical mass" of minority students dismantles racial stereotypes by allowing nonminority students to see that there is no single "minority viewpoint." However, it's hard to escape the conclusion that the "diversity activities" on many campuses aim precisely to inculcate an orthodox minority viewpoint.
In her report, the University of Michigan's Gurin gushes about the interracial socialization made possible by diversity; but the data she cites from the Michigan Student Survey show that, sadly, black students are least likely to be involved in such interaction. Almost 40 percent of African-Americans said their relations with whites were often "guarded and cautious" or "somewhat hostile."
Do preferential admissions contribute to these tensions? McWhorter believes so. "Black students often suspect that white students feel that they got in through affirmative action -- which they often did," he says. "One way to reduce Balkanization would be if black students all got into school for the same reason as everybody else."
Finally, another major casualty of affirmative action, as mentioned before, is open debate.
In "The Shape of the River," Bowen and Bok note that "institutions have been reluctant to talk about the degree of preference given black students" partly out of concern that "the standing of black students in the eyes of white classmates would be lowered if differences in test scores and high school grades were publicized." They make this point in the context of acknowledging that racial preferences may indeed have something of a stigmatizing effect. But the former university presidents seem oblivious to the fact that their statement reveals another serious problem: the existence of a taboo on discussing an important academic policy.
Sometimes, this taboo can turn into attempts to impose outright censorship. Ten years ago, Timothy Maguire, a law student at Georgetown University in Washington, published an article in the Georgetown Law Weekly, provocatively titled "Admissions Apartheid," that compared the credentials of white and black students entering the school. (He had obtained the data while working in the admissions office.) In the ensuing firestorm, there were calls for his expulsion and for a campus speech code prohibiting such "racial harassment." The administration not only shamelessly denied the dual standards but launched disciplinary proceedings against Maguire for violating "confidentiality," even though he had not disclosed any names and similar data had been circulated among the faculty in earlier years. Maguire was threatened with expulsion, though he got off with a reprimand.
Other examples abound. At California State University at Sacramento, Janine Jacinto, a white student turned down by the graduate program for social work, learned about the central role of race in admissions (a straight-A average was worth three ratings points, while minority status was worth five) by sheer chance. While discussing her rejection with a professor, she was accidentally overheard by another student who had, apparently just as accidentally, picked up a photocopied ratings sheet in her advisor's office, mistaking it for a handout. Jacinto sued the university, which eventually agreed to accept her, pay her legal fees and end race-based admissions in the graduate program -- but tried to impose a gag rule on Jacinto as a condition of the settlement.
In recent years, the legal and political battles over affirmative action have forced the issues out into the open, though the evasions continue and frank discussion of racial preferences remains difficult. A month ago, I was on a panel at Boston College Law School on diversity where everyone, myself included, tiptoed carefully around the elephant in the room -- the dramatic racial disparities in applicant credentials, law school performance and subsequent rates of failure on the bar exam. To talk about it would have been tantamount to telling the black men and women in the audience that, academically, they probably weren't as good as their white or Asian classmates.
Already, bans on racial preferences have spurred a quest for alternative ways to admit more minority students, from deemphasizing or even abandoning the SAT (recently proposed by University of California president Richard Atkinson) to "percent solutions" under which state universities must admit anyone who graduates in the top 10 percent of his or her class (as the law now mandates in Texas). Interestingly, Judge Friedman explicitly suggested in his ruling that the University of Michigan Law School could have chosen such racially neutral ways of achieving a diverse student body.
Other critics of affirmative action, however, are aghast at such proposals. The much-maligned SAT is still the best predictor of college performance. (Ironically, too, there is evidence that the exam with which Atkinson wants to replace it would indeed boost minority admissions -- but the gain would come from Hispanics, while African-Americans would actually lose ground.) "Percent solutions" force universities to admit students from catastrophically shoddy schools who are incapable of doing college-level work.
Some affirmative action defenders, including prominent legal scholar Ronald Dworkin, see these proposals as more evidence that ending preferences will have disastrous effects. "Political pressures to maintain racial diversity without racial preferences will destroy the great public universities by lowering the standards for everyone," says Jeffrey Rosen, George Washington University law professor and legal commentator for the New Republic (and an ambivalent supporter of affirmative action).
To McWhorter and the Thernstroms, the moral is that such pressures must be resisted. The real solutions, they say, can only be long term -- boosting the school achievement of black and Hispanic students starting in kindergarten.
In the short term, however, there are alternatives to watching the numbers of blacks at top schools dwindle while waiting for better times. Glenn Loury, a black conservative economist who has recently broken rank with his ideological comrades, partly over affirmative action, now supports some race-conscious remedies as long as they aim to improve performance rather than relax standards. His proposals include not only special summer courses but "provisional admission of black students to the state university, conditional on their raising their academic scores to competitive levels after a year or two of study at a local community college."
Of course, if racially exclusive, such efforts would still raise legal and moral questions. (Would it be fair to extend these opportunities to the black daughter of a lawyer and an executive but not to the white son of a gas station attendant and a salesclerk?) Still, this model of affirmative action would at least encourage achievement rather than condone underachievement.
In the end, the question facing us is not whether America should do more to expand opportunities for blacks. It's whether African-Americans deserve equal citizenship or benign white paternalism.