Affirmative Action and Ambivalence

Racial preferences, or affirmative action, or quotas, or call-them-what-you-will, are back in the news:

• The Supreme Court-which has picked up four new justices in four years while losing its three strongest proponents of affirmative action-has agreed to decide a racial-preference case for the first time since it struck down a state program in 1989 and upheld a federal one in 1990, leaving the law in a state of uncertainty. The case, Adarand Constructors v. Peña, involves the preferential award of a federal highway subcontract in Colorado.

• Likely to arrive at the Court by 1996 is Taxman v Board of Education of Piscataway, a case that the Clinton Justice Department has made famous-to the delight of Republicans hoping to unseat the president-by defending a New Jersey school district’s decision to lay off a white teacher and keep an equally qualified black teacher, on the basis of race.

Also headed for the Court is the most disconcerting case of all: Hopwood v. Texas, an appeal involving the University of Texas Law School by white applicants challenging the school’s policy of seeking 5 percent black and 10 percent Hispanic enrollment by admitting several times as many minority students as would a colorblind process and passing over hundreds of whites with higher grades and test scores. Virtually every elite university in the country does the same, 16 years after the Court held in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), that any regime that operates as a quota system driven by racial numbers was unconstitutional.

The supposedly temporary experiment with modest racial preferences on which this nation embarked in the 1970s has become a long-term, self-perpetuating addiction. With no end in sight, it is sapping the health of the body politic.

Both the benefits and the costs of racial preferences are familiar.

On the benefit side, preferences have sometimes been necessary to break down barriers to the advancement of individual victims of discrimination. While this nexus with past discrimination has become attenuated-and the irrelevance of preferences to the plight of the most disadvantaged minority-group members has become ever more clear-preferences have had the salutary effect of starting to break down the patterns of racial hierarchy and inequality that still plague our society.

On the cost side, individual whites who lose jobs (or other opportunities) because of reverse discrimination are victims no less than black victims of racism; whites who feel threatened by preferences often become embittered, cynical about civil rights, and open to racist appeals; successful black and Hispanic people are stigmatized by the perception (often inaccurate) that they owe their success to quotas; deviations from merit selection harm economic productivity and have a corrosive effect on the ideal of equality of opportunity; and preferences foment dishonesty as their advocates seek to de-legitimize perfectly reasonable measures of qualification as discriminatory if they fail to produce racially proportionate results. All this aggravates the nation’s division into rival racial and ethnic factions.

So Justice Antonin Scalia’s cold-turkey cure of writing into the Constitution a rule barring virtually all governmental racial preferences has its attractions, at least in principle.

But in practice, the Scalian cure would produce extremely distressing results: a drastic reduction in minority enrollments at the nation’s elite universities, and thus in the minority talent pool passing through the gateways to top jobs and leadership positions. It might also bring a fateful clash between the Court and Congress, with the justices claiming as their mandate a colorblind ideal that derives more from moral philosophy than from the original intent of the Constitution.

The Scalian ideal is not the only alternative to the wholesale endorsement of racial preferences advocated by liberal civil-rights groups and (so far) the Clinton administration.

Rather, the course most faithful to the Constitution-and least harmful to the social fabric-may be for the Court to continue to restrain the use of racial preferences without frontally attacking them, and to live with messy compromises.

In Adarand Constructors, a suit by a white-owned company that lost a guardrail subcontract on a federal highway project in Colorado to a higher-bidding, Hispanic-owned firm, the Court should reaffirm its suggestions in past cases like Metro Broadcasting v. FCC, 497 U.S. 547 (1990), that Congress has broader latitude than states and localities to use preferences in pursuit of racial equality, even when there is no close nexus to past discrimination. The Court should thus uphold the preferences ordained by the federal Small Business Act, under which the government pays bonuses to induce prime contractors to hire small minority-owned subcontractors.

A state of local program similar to the one now before the Court would be unconstitutional under the holding of City of Richmond v. J.A. Croson Co. , 488 U.S. 469 (1989). This decision requires that any such preferences in contract awards must be "narrowly tailored" to remedy past discrimination in the geographical area in question; there was no proof of past discrimination against Hispanic subcontractors in Colorado in the record before the Court.

Why should the result be different when the program is mandated by Congress? The legalistic answer is that the 14th Amendment and its equal protection clause directly bind only states and localities, while granting broad enforcement powers to Congress. And the equal protection "component" of the Fifth Amendment due-process clause, which does constrain Congress, has been construed as giving it more latitude than states and localities to use racial classifications.

The policy-based answer is that the Court owes more deference to the national majority in Congress than to local majorities, for reasons that go back to James Madison’s The Federalist No. 10, which stressed that a large republic was less likely than a state or city to be captured by an oppressive faction. This is particularly true in the context of racial preferences. While local black or Hispanic majorities might be tempted to use preferences systematically to treat whites as second-class citizens-as local white majorities have done to blacks-it’s hard to imagine the white majority in Congress oppressing itself.

And in the Adarand case, the impact of the reverse discrimination on the white-owned plaintiff was relatively modest: one lost subcontract.

In the New Jersey case, on the other hand, the white teacher, Sharon Taxman, lost her job. But for her race, the business teacher at Piscataway High School would have had the right to take her chances in a coin flip against the equally qualified black teacher to determine which of them would be laid off. But the school district chose to fire Taxman instead. There was no past discrimination in the school district to be remedied, nor any school-wide underrepresentation of black teachers; the only justification for the discrimination against Taxman was the supposed need for racial diversity in the business department.

As the Justice Department stressed- before Deval Patrick, the Clinton-appointed head of the Civil Rights Division, decided to switch sides in the case-the Supreme Court has never upheld a public employer’s use of racial preference in such circumstances. It never should.

In the Texas case, the need to revisit Bakke is demonstrated by evidence making it clear that the law school and many other institutions around the country have been able to reach their minority enrollment goals only by systematically ignoring or evading the restraints enunciated by Bakke. Justice Lewis Powell Jr.’s pivotal opinion in that case barred numerical racial quotas in -admissions, while holding that the goal of "a diverse student body" justified consideration of race-along with other qualities like "demonstrated compassion," ascent from poverty, and being "a farm boy from Idaho"-as a marginal "plus" factor in choosing among candidates with relatively similar academic qualifications. Powell thereby suggested, somewhat vaguely, that the finger of racial preference could not press very heavily on the scales.

As noted above, however, any serious effort to minimize the weight given to race in the admissions process would lead to a devastating decline in minority-group representation at our elite institutions. And that would be widely seen as a catastrophic turning back of the clock in race relations.

The Court should shrink from such consequences. Instead, it should recognize more explicitly that state universities-given their unique functions as gateways to opportunity in a society still plagued by racial inequality-have far greater latitude to use racial preferences in admissions than they or other state agencies do in employment or in contracting.

But the courts should strike down practices like the separate admissions committees for white and minority applicants that the University of Texas Law School used until it was hit with this suit; white applicants at least have a right to be compared as individuals with those to be admitted ahead of them, and to file individual challenges to the most egregiously unfair preferences. A poor white coal miner’s daughter, for example should not be rejected in favor of a wealthy black doctor’s son who is demonstrably less qualified.

Such a resolution, like Bakke itself, may be little more than a tattered fig leaf for a regime that will continue to be the functional equivalent of racial quotas. But given the alternatives, I’ll take the fig leaf.