Affirmative Action

Here I summarize the main features of affirmative action, whose story is twisting and complex.

I.

The phrase "affirmative action" first occurs in the Civil Rights Act of 1964 (and the allied Executive Order 11246 of 1965) tied to a non-discrimination.   The non-discrimination mandate, however, turned out not to be a simple matter once the federal courts defined the legal meaning of "discrimination.  In Griggs v. Duke Power Company (1971), the Supreme Court characterized statutory discrimination as any exclusionary practice not necessary to an institution’s activities.   Since many practices in most institutions were likely to be exclusionary, rejecting minorities or women in greater proportion than white men, all institutions needed to reassess the full range of their practices to look for, and correct, discriminatory effect.  Thus, the idea of affirmative action: each institution should effectively monitor its practices for exclusionary effect and revise those that can not be defended as "necessary" to doing business.  In order to make its monitoring and revising effective, an institution ought to predict, as best it can, how many minorities and women it would select over time, were it successfully non-discriminating.  These predictions constitute its AA "goals," and failure to meet the goals signals to the institution (and to the government) that it needs to re-visit its efforts at eliminating exclusionary practices.   The point of such affirmative action: induce change in the institution so that it could comply with the non-discrimination mandate of the CRA.

The self-monitoring and revising required by affirmative action proved ineffective in some instances.  Courts concluded that some institutions, because of their past exclusionary histories, needed stronger medicine.   Courts ordered these institutions to adopt "quota" selection, forcing them to take specific numbers of formerly excluded groups, on the assumption that once these new groups were securely lodged in institutions, the latter would adapt to the former. The point of this preferential affirmative action remained the same as the non-preferential sort: induce change in an institution so that it could comply with the non-discrimination mandate of the CRA.

Preferential affirmative action under the CRA generated a great deal of public and legal controversy.  Popular defenses of preferences depicted them as instruments of compensatory or distributive justice.  Some defenders said preferences were pay-backs for previous wrongs.  Others pictured preferences as devices to offset unfair advantage or privilege, so that selection choices were actually based on "true" merit or desert.  The important thing to note about these popular defenses is how they stand at variance with the official justification of actual quota orders imposed by courts (and government agencies).  As we’ve seen, that official justification was to change institutions to make them more able to comply with the non-discrimination mandate of the CRA.   Now, preferences used to further this aim may also have compensated some individuals for past wrongs or offset unfair advantages for some, putting deserving people in positions they otherwise wouldn’t have gotten.  If so, however, these were incidental by-products of the preferential schemes, not their justifying purpose.

II.

Parallel to this story of affirmative action, another developed as well, one not rooted in the CRA’s anti-disrimination mandate.   Rather, it involved efforts by selective universities to expand inclusion of minority students in their ranks.  As early as 1974, the Supreme Court was confronted with a case (DeFunis v. Odegaard) involving the University of Washington law school’s policy of giving preferences to minority applicants by considering their applications not against the whole pool of applicants but against each other.  The Court dismissed the case as moot (Defunis had entered the law school in 1972 by order of a lower court and was scheduled to graduate by the time the case reached final consideration).  However, the Court was soon confronted with a similar case, arising from a lawsuit by Allen Bakke against the University of California Medical School at Davis for using a similar plan of admissions.

The Bakke decision by the Supreme Court is interesting for a number of reasons.  First, no majority agreed on any argument for any outcome, although five justices did agree on an outcome: Bakke should be admitted to the medical school.  Four justices thought so because they thought the school’s preferences plainly violated Title VI of the CRA.  One, Justice Powell, thought so because he concluded the school’s policy violated the Constitution.

Second, the Bakke decision was taken by universities as a "green light" for continuing their preferential policies.   Justice Lewis Powell’s lead opinion for the Court could hardly have have been plainer: although race may be taken into account as one factor among many in choosing a class, he said, any system like the medical school’s that makes race a consistently decisive factor, or that assesses applications along two different tracks defined by race, or that uses a numerical quota fails Constitutional muster. Yet with hardly a moment’s hesitation, universities enacted – or continued – policies that explicitly segregated applicant selection by race or reserved certain benefits to one racial group but not another.  For example, the University of Maryland created the Banneker scholarships, for which only African American applicants were eligible (many other universities employed similar policies).  And the University of Texas law school adopted a practice of measuring white applicants against one standard and black and Hispanic applicants against a different, lesser standard (most other law schools used similar practices.)  These university practices are now being undone through litigation, and supporters of affirmative action are trying to hang on to Powell’s dicta that race might be used as a "plus" in admissions decisions.

Third, Justice Powell noted that the Court had never approved the use of racial preferences except in instances where an institution had been found guilty of discrimination, implying that the Constitutional standard on quotas is identical with the CRA standard: quotas can be used only to cure an institution of its own discriminatory ways.   (See Justice Scalia’s reformulation of this idea in the Croson case, 1989.)

Fourth, and most importantly, Bakke illustrates (i) the need to interpret the "equal protection" clause of the 14^th Amendment -- it doesn’t contain its meaning plainly on its face -- and (ii) how such an interpretation can go in two strikingly different ways.

For Justice Powell, "equal protection" must mean the same thing whether applied to white or black.  It does not allow any distinguishing between racial classifications, viewing some as "benign" and some as not.  Every racial classification has to be measured by the same unyielding test: is the classification necessary ("narrowly tailored") to serve a compelling state interest?  Powell held that the medical school’s interest in "educational diversity" did, indeed, satisfy the second prong of the test (a university’s choices affecting educational diversity are protected by the 1^st Amendment to the Constitution) but failed the first, since choosing on the basis of race is an incoherent way of promoting the full range of qualities signified by ‘educational diversity.’

Justices Brennan and Marshall agree that "equal protection" must mean the same thing whether applied to white or black, but they insist that the proper understanding of 14^th Amendment litigation allows for distinguishing between benign and not-so-benign uses of race.  The race-based laws the Court has overturned in the past all involved "stigmatization," argue Brennan and Marshall.  Whether they were laws to segregate schools or prevent cross-race marriages or exclude blacks from sitting on juries, they were all designed to mark blacks with the "stigma of inferiority" and to relegate them to a degraded "caste."  What "equal protection" of the laws requires is not that legislation never burden one person rather than another, or even that it never burden one person rather than another because of his race, but that it never create second-class citizens.  In the case of the medical school policy, Bakke was indeed burdened on account of his race, but the policy did not stigmatize Bakke with a "badge of inferiority," nor was its purpose to make whites second-class citizens or encourage hate against them.   Consequently, argue Brennan and Marshall, the racial classification used by the medical school ought not be rejected by the "compelling state interest" standard.  The Court should accept its purposes – to undo some of the effects of past "societal discrimination" – as wholly adequate under the Constitution.

The central question raised in Bakke remains to be answered compellingly: is the 14^th Amendment best interpreted as prohibiting any and all uses of race (making the Constitution "colorblind") or as prohibiting only those kinds of classification that designate a group as "inferior" or "degraded" (making the Constitution "hostile to caste").

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