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Spring 1998, Volume XIII Number 2
Affirmative Action: A Dialogue on Race, Gender, Equality and Law in America
Affirmative Action as Social
and Legal Policy
Editors: There is, perhaps, a political consensus in our society that Government has
some kind of obligation to promote/foster, if not ensure, racial equality, but that
consensus - like others - breaks down in the specifics of implementation and social
practice. What are the range of tools, including but not limited to affirmative action,
available to address the kind of racial discrimination, disparate impacts, and resulting
inequities described by many of you? Which tools are better? Why?
Donna Maeda: I'd like to do some thinking about how to address the question
about "tools" for this conversation. One of the difficulties of addressing
problems of race in law is the contestation over not just tools, but what constitutes the
"starting point" from which interpretations and applications of law must
proceed. Since it's possible to question the objectivity or neutrality of descriptions of
conditions that exist, we can then ask whether what needs to be done is to promote,
foster, and ensure racial equality or to uncover, undo, and dismantle racial supremacy or
racial hierarchies. Clearly, the tasks are connected; each is important. Yet our positions
on the neutrality or non-neutrality of starting points and legal concepts will just as
clearly shape our ideas about the appropriateness of particular tools. I think that when
the goal is seen as promoting racial equality, there's a tendency to think in terms of
balancing it against other goals. Those who attend to racial hierarchies perhaps object to
the idea that racial equality is simply one goal among many that a government-or society
more generally-might address.
Glenn C. Loury: Our moral queasiness about the use of race arises for
historically specific reasons-namely, slavery and Jim Crow segregation. Those reasons
centrally involve the caste-like subordination of blacks, a matter that, in actual
historical fact, was not symmetrical as between the races. As such, to take account of
race while trying to mitigate the effects of this subordination, though perhaps ill
advised or unworkable in specific cases, should not be viewed as morally equivalent to the
acts of discrimination that affected the subjugation of blacks in the first place.
I stipulate that an isolated individual's race, as such, is ethically irrelevant.
Nevertheless, there are circumstances where the ability of a public policy to advance the
general interest of all persons is enhanced by taking cognizance of the racial identities
of particular persons. Under these circumstances, the steadfast refusal to take into
account how a policy might impact the members of different racial groups, in the name of
legal consistency, can turn out to be an act of moral obtuseness.
To illustrate, consider the case I have made elsewhere (see "How to Mend
Affirmative Action," The Public Interest, Spring 1997) for "developmental
affirmative action." I argue that the public goal of raising the competitive
abilities of disadvantaged blacks can be appropriate. "Merit" is not just
something people are born with; it is the product of social processes which, because of
our history and the ways we choose to associate with each other, have a racial dimension.
Social policy should attend to racial inequality, if the consequence of historical
discrimination against blacks is not to be a permanent economic disparity. For these
reasons I suggest that racially targeted recruitment and training efforts in the
workplace, and a willingness to experiment with conventional selection methods in colleges
and universities so as to find and develop the talent of black students, are legitimate
policy undertakings.
There is nothing in the sorry history of affirmative action abuses that requires us to
tie our hands with such color-blind formalism. The color-blind principle, while consistent
as a self-contained legal rule, is in my opinion neither morally nor politically coherent.
For instance, it would seem to be an implication of this principle that we should
discontinue all racial classifications associated with the collection of statistics by
government agencies. Yet, monitoring the racial dimension of social and economic trends is
an obviously vital public function. These data are the sole source of our knowledge that
discrimination has declined over the years, a key aspect of the case for reforming the
practice of affirmative action. Without these data, the vast over-representation of blacks
among imprisoned felons in this country could not be rationalized in such a way as to
refute the charge of systematic racism in the administration of criminal justice. This
illustrates how, despite the moral irrelevance of race at the individual level, there
remains an operational need to attend to racial disparity in the conduct of our nation's
public affairs.
Douglas Kmiec: I agree entirely with Dr. Loury that merit, presumably the
alternative to preference, is the product of social process, but these social processes
occur more effectively and fairly at the individual, not the governmental, level.
Publicly, the law should make no racial distinctions. Governmentally-coerced public
preferences doled out according to generic categories result in invidious discrimination
between minorities and non-minorities, as well as claims of diversity that are very often
only skin deep. In private contexts, however, it is morally commendable to understand and
ameliorate adverse racial consequence within individual lives. Thus, I think there is a
powerful case for private colleges, universities and employers to assess the effect of
race on an individual and to let that be a partial basis for the allocation of admission
or employment opportunities. Why not allow this discovery or inquiry into adverse racial
experience in public institutions? Because, frankly, it is inherently wrong for a
government of laws that is itself premised upon universal or natural law principles to
make decisions that undermine those very principles. That this was once done is tragic.
That it would continue to be done is inexcusable.
Public law by nature must be uniform, specified in advance, and administered
evenhandedly. Private decision making can be much more particular. Further, on simply
pragmatic grounds, too many public institutions have demonstrated, that if race remains a
factor for them, it gets handled very mechanically or formulaically. True, there are some
exceptions, but too few. And of course, even the exceptions, as salutary as they may be in
an individual life that is given advantage, are in tension with the principles that need
to govern the allocation of resources that are coercively gathered from all.
Robert Fullinwider: Douglas Kmiec presses a theme he introduced earlier, one
that proceeds from a quite mistaken premise, I would argue, so I want to revisit it. Kmiec
says: "The most minimal classification under law requires a rational basis. Because
race is a moral irrelevancy, insofar as it tells us nothing about a person's intelligence,
integrity, or ability, it is irrational in the extreme to base public decision upon
it." Kmiec's conclusion is a non-sequitur. The so-called "rational basis
test" that the Supreme Court uses in deciding (the vast majority of) equal protection
cases is extremely permissive. It only requires that the legislature have some plausible
public-serving reason for making a legal distinction; moreover, the legislature's reason
need have nothing to do with the moral worth of the individuals picked out by the law for
differential treatment. For example, our federal law distinguishes between sugar growers
and tomato growers. The former get federal subsidies, and the latter do not. It
distinguishes between 18- to 26-year-olds and those older. In case of a military draft,
the first group would be subject to conscription while the second group would not. When
Studebaker and American Motors fell on hard times, the government let them collapse; when
Chrysler was on the verge of bankruptcy, the government stepped in with a bail-out. The
basis of the legal differentiation in these cases is the public interest. The Congress
considers it in the public interest to maintain a sugar industry; it judges that bearing
arms is more effectively done by younger rather than older men; and it thought the failure
of Chrysler would be a national disaster in a way that the collapse of Studebaker and
American Motors would not. Each of these legislative differentiations passes
Constitutional muster-i.e., they fulfill the command to provide "equal protection of
the laws"-even when the reasons aren't necessarily socially sound (as in the dubious
judgment that national interest requires protection of the domestic sugar industry).
If the Court used a "rational basis test," all kinds of racial
classifications would pass legal muster as well. Affirmative action would be easy to
justify. The rational basis test is so weak, it would allow government action that
discriminated against blacks. A government might segregate public housing, for example, on
the grounds that public order was threatened by integration. It is precisely because the
"rational basis test" would permit all kinds of race-differentiating public
policies that the Supreme Court doesn't use it in cases involving race. It uses a very
stringent test, demanding that the legislature have an utterly "compelling
purpose" and "necessary" reason to write a racial classification into law.
Now, why this special deviation from the normal application of "equality?" Is it
logic that sets race apart? Abstract principle? No. It is, as Glenn Loury emphasizes,
history. If the national interest is served by propping up a domestic sugar industry,
surely it is served by policies that help lodge a cadre of blacks into the professions,
create a stratum of black contractors where there were none, or integrate board rooms
across the land. I can imagine here the following objection to what I've said. Sometimes,
the government can't impose special burdens on people even if the national interest would
be served by doing so. It can't deprive people of their property or freedom without due
process of law. The public good cannot override people's rights. True enough, but what are
people's Constitutional rights in regard to admission to a public law school, or
acquisition of a government contract, or promotion in a job, public or private? Well, the
Constitution tells us they have a right to what?-to "equal protection of the
laws," and that's all. Legal equality, therefore, is compatible with lots of unequal
treatment. What singles out race as a special case? History, not natural law. All that the
latter can tell us in regard to equality is summed up in those great generalities embedded
in the Declaration and the 14th Amendment. We have to interpret what they mean for our
time and place.
Richard Kahlenberg: Given the strong legal, moral, and political obstacles that
face existing race-based affirmative action (in the preferential sense), it is incumbent
on those who are deeply concerned about inequality to explore new alternatives. Clearly,
we must consider doing more than simply outlawing racial discrimination, for as Professor
Loury notes, "merit" is "not something people are born with; it is the
product of social processes." He argues for "developmental affirmative
action" which is limited (as I understand it) to "disadvantaged blacks." I
think means-tested affirmative action is a step in the right direction, because it is hard
to argue that advantaged blacks are lacking in educational opportunities, networks etc.,
particularly vis-a-vis disadvantaged whites. But why not go further and include poor
whites, who also attend lousy schools and don't have uncles who can find them nice jobs?
Douglas Kmiec: Dr. Fullinwider nicely summarizes the highly deferential rational
basis standard which the Supreme Court applies to economic regulation and correctly notes
that the Court demands a compelling interest for the employment of a racial
classification. The point of my earlier remarks was to suggest, as a matter of
constitutional principle which is necessarily informed by the self-evident premise Dr.
Fullinwider cites (the Declaration of Independence), that the government not only lacks a
compelling interest, it also lacks a rational one to continue to employ an unprincipled
standard in classification. I fail to see the non-sequitur in reasoning from the objective
moral premise of the Nation's founding to constitutional application, even as our history
or prudence did not allow it earlier.
Paul Finkelman: Well, one compelling interest, at least from a law and economics
view, might be that as a society we simply cannot afford to cut out from the economy 20%
or more of the population; we lose out on vast amounts of brain power and productivity.
Furthermore, an underclass, especially one linked to a racially identifiable group,
produces greater crime, prison building, welfare burdens, etc. We cannot, as a society,
afford this waste of resources. Jesse Jackson's cute phrasing-"it costs less to send
someone to Yale than to jail"-makes an important point. The fact is that black
ghettoization all across the nation was the result of government policies, such as where
to build roads, what kind of housing programs to support, who would get into the military
or military academies, who would get public sector jobs, who got into public universities,
what kinds of housing loans were made, etc. So, one might make an argument that there is
clearly a rational basis to some forms of affirmative action and perhaps a compelling
national interest.
I think we ought to be a bit restrained in talking about the "moral premises"
of the Founding. In fact, we might argue that the moral premise of the Founding was
affirmative action for slaveowners, including, as later implemented by Congress, national
law enforcement to hunt down slaves who escaped to seek freedom. I am not suggesting that
we discard or trash all of the ideals of the Founding. Far from it. But, if we are going
to live up to them, we might begin by understanding that the "moral premise" of
the Founding is a bit tainted. Professor Kmiec seems to be calling for an absolute color
blind application of the law in a society where, I think all people agree, we have never
had a color blind application of the law or of any other major social policies.
Douglas Kmiec: Paul Finkelman will get no argument from me about the outrages of
the past. But societal discrimination against black males, which I concede troublingly
remains, does not justify off-setting discrimination against innocent whites, or here in
California especially, innocent Asian-Americans. Aberrant, discriminatory police behavior
requires prosecution, not modeling.
Paul Finkelman: If we agree that there was a great deal of past discrimination,
and much of it in the very recent past, and that indeed, most of our history has been
shaped by taking race into account and making decisions on the basis of race, then isn't
it a little late in the day to suddenly say, "well, the moral premises of the nation,
'all [people] are created equal,' mean that we cannot consider race in the implementation
of social policy, economic policy, and legal policy? One might oppose affirmative action
on other grounds, including that it is bad policy. I certainly think in many cases it has
been stupidly implemented, and sometimes it may be bad policy. But, bad policy does not
rise to the level of unconstitutional policy.
Camille deJorna: National polls show that a majority of the American public
support special efforts for women and people of color. A recent New York Times poll
suggests that most Americans support diversity in schools and agree about the need for
special programs, but they're unsure about the means. Perhaps, as our exchange suggests,
there is not a political consensus over the government's role in "ensuring
equality" except-as Professor Kmiec suggests-that we prosecute or penalize
wrongdoers. As Chuck Lawrence and Mari Matsuda remind us in We Won't Go Back: Making the
Case for Affirmative Action, affirmative action as a remedy was the "product of
rebellion and compromise." It was, they concluded, "no coincidence that the
period marking the height of urban unrest was the period in which both government and
private corporations began affirmative action programs in earnest. When a tangible threat
of mass insurrection loomed, making room for a few more folks from the nation's ghettos
seemed a small price to pay." My own recollection was that affirmative action, one of
the most important remedies with respect to equal opportunity, came as a direct result of
the burning of the inner cities, not from a principled view about furthering opportunity
for blacks. Fear and guilt motivated this remedy.
Donna Maeda: I find the assumptions about what counts as an objectively neutral
position of individuals to be increasingly limiting in terms of what can be addressed in
this discussion. The turn to the language of "innocence" is particularly
troublesome, especially when associated with "innocent whites" or "innocent
Asian Americans" in Douglas Kmiec's language. It's interesting here to think about
how Critical Race Theorists examine the relationship between whiteness and property.
Critical Race Theory is especially helpful for considering limitations in thinking about
race and rights in individualistic terms; these theorists attend to ways that race
operates beyond individual experience. This is the frustrating part about affirmative
action; it attempts to deal with the collective realities of race, but largely within the
language of the individual. Critical Race Theorists, such as Cheryl Harris and Patricia
Williams, point to possibilities for linking understandings of the operations of racial
constructions to re-thinking rights generally, and affirmative action more specifically.
Patricia Williams, in The Alchemy of Race and Rights, is particularly effective in
uncovering the ways that ideas of objectivity and neutrality actually serve to uphold
ideologically, as well as materially, entrenched positions of white superiority and black
inferiority. By considering what counts as neutrality, we can begin to uncover the deeply
entrenched social meanings attached to "race" - not only in the most visible
forms, but especially in social relations that we take for granted. Critical Race
Theorists help to shift the discussion of affirmative action-to look critically at
taken-for-granted notions of what we ought to be considering: What is rendered invisible
about "race" and equality if we focus our attention on individuals, on merit, on
supposedly neutral positions, on "innocence"?
I am very troubled by the use of the notion of "Asian American innocence" to
challenge affirmative action. Asian Americans have benefited tremendously by participating
in movements of resistance to racial hierarchies. Changing racializations of
"Asian" in "America" can only happen if we work harder at
understanding the complex, interrelated constructions and operations of "race,"
not by subsuming Asian Americans into a narrative of white and Black, to be praised as a
model minority or reviled as a racial threat.
Paul Finkelman: The very fact that some people are so upset about racial
affirmative action suggests just how important race is for so many people in the U.S. It
remains such a troublesome issue because so many people (mostly white) are still
uncomfortable with integration and racial equality. We still designate people by color, we
still have country clubs and other social clubs that do not admit blacks. We remain at
every turn, a racially divided society, and we make race an issue all the time. So,
affirmative action for blacks, and to a lesser extent for other minorities, bothers white
Americans.
Spring 1998 Issue Home | Why Race Matters
Affirmative Action as Social and Legal Policy
Affirmative Action, Diversity and College Admissions
Gender, Race, and Affirmative Action
Reconceiving Merit | Affirmative
Action in the Workplace
Constitutional Status of Affirmative Action
Book Recommendations | Contributors
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