The Perpetual Reign of Racial Preferences

Melvin Urofsky’s new history of affirmative action, The Affirmative Action Puzzle, opens with an old Jewish Joke. Two peasants ask the rabbi to resolve their dispute. After one presents his case, the rabbi says “My son, you are right.” The other makes his pitch, and the rabbi gives the same response. “But,” says the rabbi’s wife, “they can’t both be right.” To which the rabbi replies “You’re right.”

Why this story? Although proponents of race preferences have largely prevailed, there are compelling arguments for and against. Without claiming to offer an exhaustive review of the moral and philosophical quandaries raised by the controversy, the author of this detailed and comprehensive look at the practice of affirmative action does a creditable job of laying out the opposing principles, priorities, rights, and claims implicated in the debate. In the era of “The Great Awokening” and the rise of the “anti-racism” movement triggered by the death of George Floyd in police hands, this is a brave act. Any suggestion that dueling positions on an important racial question deserve thoughtful consideration, careful weighing, and a civil hearing can at best be described as “quaint” and, at worst, as a  forbidden thought that deserves extinction. In reminding us that racial issues can be honestly debated, as well as in providing some surprising insights into the present moment, this book makes a valuable contribution to our understanding of a complex, vexed, and highly charged issue.

From Restoration to Diversity

From its inception, affirmative action focused on rectifying a long and sorry history of persecution and discrimination against blacks in virtually all aspects of American life. The enactment of the Civil Rights Act in the early 1960s, which forbade private racial discrimination across many key sectors, brought to a head the issue of whether and when race-preferences were necessary. As the expectation that blacks would take their rightful place in economic and social life was soon stymied, a consensus grew that advancement would require more than the legal command to stop discriminating. Removing, reversing, and undoing the lingering vestiges of the past would also be required.

The idea that past harms justified not just a cessation of those harms but also measures to correct for their present effects was one with strong roots in Anglo-American law. It had long been understood that the legal goal of remediation was to restore the victim to the “rightful position”—the position that the victim would have enjoyed if he had never suffered the wrong. Although, curiously, the phrase “rightful position” barely figures in civil rights cases, the restorative aspiration looms in the background and exerts a powerful influence. For blacks, the touchstone of full correction, and thus racial justice, came to mean that they would occupy the same social, educational, and occupational positions as whites.

Perhaps the closest to a formal expression of this idealistic, highly exacting concept was President Johnson’s famous speech at Howard University, which Urofsky quotes repeatedly, articulating the goal of federal civil rights laws as not just “formal equality in principle and law,” but “equality as a fact and equality as a result.” That “equality in result” would require the adoption of race-conscious measures across multiple domains became the accepted ideology among civil rights proponents. In the famous words of Justice Harry Blackmun in Regents of the University of California v. Bakke in 1978, “In order to get beyond racism, we must first take account of race. There is no other way.”

Although specific, limited race-conscious remedies for discrimination were not hard to reconcile with standard legal-equitable principles, formidable obstacles remained. Much of the public endorsed individualist, impartial ideals of meritocratic selection: Although most people generally accepted what Urofsky terms “soft” affirmative action, including efforts to enhance minority competitiveness through outreach and improved opportunities, polls consistently showed ambivalence or downright opposition to “hard” measures such as mandated quotas or firm goals of racial proportionality.

Other hurdles were embodied in the Civil Rights Act itself, including its disavowal of any requirement that an “employer . . . grant preferential treatment to any individual or to any group” due to numerical imbalances. Urofsky is honest enough to admit that the legal text appears to bar race-conscious, affirmative group remedies even when violations of the statute have effectively kept blacks out. In other words, Congress wrote a law that did not authorize affirmative action.

From the first, the executive branch, in enforcing the law, effectively ignored and repeatedly flouted this limitation. Urofsky quotes an EEOC staff member in the 1970s stating that the anti-preference bar is “a big zero, a nothing, a nullity. [It doesn’t] mean anything to us.” In keeping with this attitude, the EEOC and an expanding network of federal offices and agencies proceeded to impose ever more intrusive and onerous requirements on hiring and admission, including quotas, targets, and timetables as well as massive burdens of paperwork and documentation. Urofsky doesn’t engage in a deep analysis of the motivations and forces behind this trend, thus missing an important aspect of the story: an arrogant civil rights enforcement apparatus, operating in open defiance of legal constraints, served as a prime example of the overweening and lawless “deep state” in action, engendering resentful opposition with long-term political consequences.

The courts for their part also made the fateful choice to ignore the plain terms of the law’s commands by issuing a series of rulings allowing the use of public and private racial preferences.  The courts’ permissions were not unreserved, however, as they grappled with the challenge of retrofitting legal doctrines geared to individuals to entire groups in which not everyone was a proven victim or perpetrator. 

The failures of affirmative action are being smothered in euphemism and swaddled in evasive double-talk.

Especially vexed was the question of whether and how much proof of past discrimination was necessary. Although the Supreme Court was generally hostile to “amorphous claims that there had been past discrimination,” as Justice O’Connor puts it in one business set-aside case, City of Richmond v. Croson, it occasionally accepted a “manifest imbalance” of racial representation in lieu of hard evidence of bias. Other rules it adopted included a ban on rigid quotas and numerical targets, the requirements that race-based measures serve a “legitimate and compelling government interest,” be narrowly tailored and no more extensive than necessary to correct a violation, and be structured to operate only temporarily. Despite these restrictions, and in keeping with the practice of the executive agencies, the courts were not infrequently more forgiving of race-conscious initiatives than the law either mandated or allowed.

One particularly egregious precedent, which Urofsky rightly recognizes as having lasting and widespread consequences, is United Steelworkers v. Weber (1979). There Justice Brennan wrote an opinion that “somehow managed to find that the explicit wording of Title VII prohibiting racial discrimination did not foreclose private race-conscious affirmative action plans, even without proof of any past discrimination, simply to correct ‘statistical imbalances.'” Although purporting to place strict temporal limits on voluntary programs, Weber has been taken as a green light for the discretionary employment of race preferences in perpetuity throughout the private economy.   

The early affirmative action cases were primarily about jobs and businesses. By the 1990s, the action had shifted decisively to education. Enter the powerful and transformative concept of diversity. That idea, which had been percolating for a while in academia and the corporate world, had its doctrinal maiden voyage in Justice Lewis Powell’s concurring opinion in Bakke, which struck down a quota-based affirmative action plan at the University of California at Davis Medical School. Powell suggested that, even if rigid quotas were verboten, race-based educational selection could be justified as a device to create a diverse student body that would help augment the educational experience.

The diversity goal quickly became the central pillar of the Supreme Court’s educational affirmative action jurisprudence and the chief justification for race preferences in higher education nationwide. In Grutter v. Bollinger and the Fisher v. University of Texas line of cases, a majority of the Court officially recognized educational diversity as a “compelling interest” justifying some degree of race-conscious student selection, while also importing the prior touchstones of a bar on rigid quotas and the narrow tailoring of racial methods. Although appearing to place genuine limits on the use of affirmative action in higher education, these rules proved essentially toothless. The open-ended and ill-defined nature of diversity, its elevation to a constitutional “compelling interest,” Justice O’Connor’s language in Grutter deferring to educational “experts” on the degree and type of diversity needed, and the Court’s failure to demand evidence of diversity’s actual efficacy gave universities carte blanche to structure their admissions criteria pretty much as they wished. 

Urofsky’s rather plodding and uncritical account of the higher education cases overlooks their potentially broader significance. The pivot from remediation to diversity can be viewed as an accommodation to stalled progress on race after the initial exuberance of the civil rights era. By the late 1990s, the high hopes surrounding race-conscious programs were rapidly fading and disillusion was starting to set in. Justice O’Connor famously said in Grutter that she expected that affirmative action would no longer be needed after 25 years. But making diversity central to the educational mission neither promises nor requires group uplift or equalization. It rests on the educational value of minorities’ institutional presence, not on the promise of undoing past harms by bringing blacks, or any other lagging group, up to speed. Diversity, unlike remediation, is thus compatible with race preferences in perpetuity.      

An Ingredient of Wokeness

Urofsky more than once poses the question whether, despite pros and cons, affirmative action can be deemed a success. His positive answer mostly rests on equivocal and dated evidence collected by educrats and other interested parties suggesting that minorities gain advantages from attending elite institutions that are out of reach under race-blind admissions. Since Urofsky mostly repeats these conclusions without providing precise numbers, effect sizes, or rigorous counterfactuals, readers are asked to take this on faith. As for costs, Urofsky cavalierly dismisses the contention that non-minorities suffer significant displacement or lost opportunities from race preferences by analogizing their effects to the trifling inconveniences able-bodied drivers suffer when parking spaces are set aside for the disabled.

The author is only able to come to his Panglossian conclusion by maintaining a painfully narrow focus on the direct beneficiaries of preferences—the “affirmative action babies” themselves. He never looks beyond that small, elite group to the black population as a whole, nor does he squarely confront the fact that racial preferences have barely made a dent in the conditions that continue to make special treatment necessary. Although Urofsky doesn’t deny that large racial gaps in educational achievement persist, he ignores an important implication: that affirmative action’s remedial ambitions have largely failed to be realized. Although claiming to boost the ranks of the middle class and placing more “black faces in high places,” race preferences in jobs and education have left largely untouched the endemic dysfunctional trifecta that continues to plague many black communities—crime, fatherless families, and educational underachievement.

 A deeper problem with Urofsky’s upbeat take is that he seems oblivious to the destructive effects race preferences have had on higher education and society as a whole. Given the book’s timing, he can be forgiven for failing to discuss affirmative action’s role in fueling and shaping the surging social justice movement and the triumph of “wokeness” in universities, although not for his silence about the obvious beginnings of illiberal campus trends. These developments have distorted and deformed intellectual life and disfigured race relations. They are now sharpening political divisions in society at large.  

How has affirmative action contributed to wokeness? By making promises it couldn’t keep. The plain reality is that affirmative action plans, by definition, bring to selective institutions a contingent of minority students who are on average less equipped than fellow students to meet the rigors and demands of elite academia. The high hope was that affirmative action would bring blacks as a group up to speed almost immediately, or at least within a generation or two, allowing them to compete on the same terms as other groups. That hasn’t happened. Instead, these programs have generated frustration, resentment, anger, and self-doubt.

These disappointments and dislocations have generated strenuous efforts to protect minorities and others in the university from acknowledging, confronting, and facing up to the realities of persistent racial disparities in educational performance and ongoing troubles within many black communities. Wokeness can be seen as a culmination as those efforts—an elaborate set of rules, beliefs, demands, taboos, and rhetorical devices designed to obscure, correct for, and deny these realities. The project of formulating and enshrining wokeness as the campus code is led, in many cases, by minority elites who are the direct beneficiaries of decades-long race-conscious efforts. They are aided and abetted by left-leaning campus supporters of all stripes and the proliferating ranks of administrators who now owe their jobs to the all-important goal of advancing diversity, inclusion, and equity on campus. These jobs are a fertile source of employment for many minority graduates of affirmative action plans.

The demographic diversity that the defenders of race-conscious admissions promised would enrich and broaden higher education by introducing newly varied perspectives has instead had exactly the opposite effect.

According to the woke philosophy, pervasive racism, ongoing discrimination, white supremacy, and white privilege—not any cultural characteristics that dominate in too many portions of black society—are the sources of all racial inequalities in educational institutions and society as a whole. The taboo against any other explanation, which determines what can and cannot be said about race on campus, provides the protective “safe space” that minority students demand.  Ibram X. Kendi, in his book “How to be an Anti-Racist” sums it up, “[t]here is nothing wrong with black people. . . [A]ll cultures, in all their behavioral differences, are on the same level.” 

Another key element of wokeness, well designed to obscure affirmative action’s failure, is a comprehensive attack on the skill-based meritocracy. Tests such as the SAT, programs for gifted students, exam high schools, academic metrics of performance and professional success, and any criteria that show racial gaps, are to be discredited and, ideally, eliminated. Candor and linguistic precision have also suffered under the yoke of social justice wokeness. The failures of affirmative action are being smothered in euphemism and swaddled in the evasive double-talk that is now the lingua franca of educrats and administrators everywhere. The need to hide and deny reality not only leads to the debasement of language and the abandonment of honest, exacting standards of civil discourse, but also encourages universities to relax traditional demands and expectations of academic life. Wokeness is hostile towards free speech and expression and disparages the pursuit of truth that is the lifeblood of the academic enterprise.

For ultra-progressives, these conventions constitute tools of white supremacy that harm, injure, and threaten victims of oppression and are tantamount to hate and “violence” against them. Beliefs and positions deemed unsafe and fatally injurious are met with accusatory labels and penalized by “cancellation,” loss of academic privileges, and reputational destruction. Reasoned, respectful debate, methodical analysis, and the rigors of empirical inquiry are regularly displaced by name-calling, character assassination, and moralistic censure, which are the responses to disagreement favored by campus social justice warriors. These ploys are a form of intellectual shirking that relieves students of the arduous burdens of having to argue for their positions on the merits. The degeneration of campus discourse, and official leniency towards it, are embodiments of the double standards endemic to race preferences.

The ultimate irony is that the demographic diversity of backgrounds and experiences that the defenders of race-conscious admissions promised would enrich and broaden higher education by introducing newly varied perspectives, voices, and viewpoints has instead had exactly the opposite effect. The spread of race-conscious admissions in the name of diversity has helped spawn and fuel a rigid and unyielding orthodoxy of thought, speech, and permissible opinion on campus. Race preferences have eroded the integrity of higher education and the quality of education that all students, even at the best institutions, receive.

A cardinal example of the sloppy thinking and outright inconsistency that are routine features of the discourse surrounding race-conscious admissions practice is black students’ oft-repeated, indignant complaint, which Urofsky repeats several times, about being forced to listen to fellow students and professors voice their assumption that the black students’ presence is due to affirmative action and that those students are thus less qualified than others. But the author also cites statements, often made in briefs filed in defense of race-conscious programs, including many filed in the Grutter case, that abandoning race preferences and reverting to color-blind admissions would result in a dramatic decline in the number of black students. Nowhere does Urofsky attempt to reconcile black students’ complaints with the implication of those statements, which is that many blacks at elite institutions are indeed there because of affirmative action.

What does the rise of wokeness betoken for the future of affirmative action? As initially conceived and designed, race-preferences left the basic system of individual self-development in place. Its objectives were to remove barriers, level playing fields, provide tools for racial progress, and widen opportunities. The shift to diversity, although changing the rationale for special treatment of under-represented minorities, did not challenge the fundamentals of the system. Even as applied to employment, where the Supreme Court has never formally recognized achieving diversity as a justification for race-conscious preferences, the steadily growing reliance on the diversity rationale in the workplace setting has left meritocratic systems and managerial prerogatives largely intact and has mostly honored the restraints the Supreme Court has imposed, including the ban on the overt use of quotas to achieve proportional representation.

The anti-racist movement and social justice initiatives that have recently gained so much momentum now threaten to destroy those limits. The gentle evasions that initially surrounded the use of race preferences in the educational sphere have transmogrified into a savage indictment of the whole society and a frenzied determination to destroy or reorder basic structures to produce the appearance of racial equality everywhere. Under the new dispensation, unconstrained group preferences for blacks would be the order of the day, with other groups pushed aside without delay or ceremony.  As  Kendi puts it in How to Be an Anti-Racist, “Fundamentally, the modern antiracist movement is . . . pro-discrimination [against whites and Asians].” It is hard to avoid the conclusion that the “Kendification” of our institutions and our economy would entail ignoring all carefully crafted legal restrictions on race-conscious measures as well as the old niceties of effortful achievement and desert.

Lately, private corporations, universities, and a host of other entities have issued “anti-racism” statements, declarations, and pledges, promising to increase the presence of blacks at all levels. Conspicuously absent from these statements is any reference to the law of affirmative action and judicially imposed constraints on race-conscious hiring and admissions. These pledges, all encouraged and endorsed by mainstream opinion leaders and politicians, solve the puzzle of affirmative action by pretending it doesn’t exist. There is evidence that these commitments have already yielded the defiance of existing legal restrictions. Although the California state constitution currently outlaws using race and ethnicity in state university admissions, the flagship University of California at Berkeley has announced a 40 percent increase in the number of black and Hispanic freshmen admitted for 2020.

If social actors continue to follow through on their promises, race preferences will become even more pervasive and unconstrained. If legal challenges follow, will the courts yield or resist? The far bigger question is what effect those preferences will have on our society. Will the zealous pursuit of equal group outcomes over individual rewards erode our prosperity, prowess, effectiveness, and international competitiveness? Will it worsen existing animosities and divisions in our body politic? These fresh affirmative action puzzles confront us now and in the future.