The Road Beyond Racial Preferences

Why should a rich black lawyer’s child get into an elite college ahead of a struggling white factory worker’s child who has pushed himself harder and achieved better grades and test scores?

Why should either of them get the nod, for a university slot or for an entry-level job, over a poor child from the black inner city or white Appalachia who has slightly lower scores but has shown exceptional drive to overcome adversity?

Such questions-and the broader one of whether affirmative action for racial groups should give way to class-based preferences for individuals who have overcome disadvantage-are coming starkly into focus with Judge Clarence Thomas’ probable ascension to the Supreme Court.

The nominee’s broadside attacks on racial affirmative action in recent years suggest he may well cement a majority for eviscerating most or all race-based affirmative-action programs.

But Thomas also told the Senate Judiciary Committee that he favors preferences for those who have overcome barriers of social, economic, and educational deprivation.

He defended the affirmative-action plan that helped him get into Yale Law School in 1971 by saying (with questionable accuracy) that it was aimed at applicants who had done well despite "socioeconomic disadvantages" and that "the kid could be a white kid from Appalachia, could be a Cajun from Louisiana, or could be a black kid or a Hispanic kid from the inner cities or from the barrios."

In his own hiring decisions, Thomas added, "We look[ed] for people who have had some of the disadvantages….I think you can measure a person by how far that person has come and by what that person has overcome to get there….And I think we all know that all disadvantaged people aren’t black, and all black people aren’t disadvantaged."

Similarly, in a 1979 article excoriating racial affirmative action, then Professor Antonin Scalia noted cryptically that "I strongly favor….what might be called …’affirmative action programs’ of many types of help for the poor and disadvantaged."

This idea of basing affirmative action on social class rather than race has gotten little of the serious exploration it deserves, however.

Conservatives like Thomas and Scalia have not offered the kinds of detailed proposals that would evidence real enthusiasm for class-based affirmative action. And while liberals often justify racial preferences as a remedy for victims of discrimination and disadvantage, few have come to grips with the criticism that many or even most beneficiaries of such programs are not proven victims of discrimination and come from relatively advantaged backgrounds.

Preferences for poor people, on the other hand, would in some ways be more fair, more consonant with merit selection principles, and less socially divisive than racial affirmative action-as well as legally unassailable.

More fair, because beneficiaries of such preferences, as described by Thomas, would be chosen not simply by race or social class but on the basis of demonstrated individual commitment to hard work and potential for achievement.

No longer would blacks from privileged backgrounds get an additional break for being black; no longer would poor people who have performed impressively in inferior schools be passed over because they are white.

While the beneficiaries of racial preferences include many (nobody knows how many) minority group members who have overcome real adversity, these people would also qualify for class-based preferences, along with their white counterparts.

Preferences for the poor would be less socially divisive because they would not pit racial groups so directly against one another and would be more in tune with popular notions of justice.

Michael Kinsley, in an otherwise thoughtful analysis in The New Republic of Aug. 19 and 26, misses the mark in asserting that class-based affirmative action is necessarily "a departure from the principle that scarce spaces should go to the best-qualified candidate" and thus "stigmatizes the beneficiaries" just as surely as racial preferences.

To the contrary, class-based affirmative action should be used not to depart from merit selection but rather to perfect its search for the best-qualified candidates.

As the late Justice William O. Douglas said in 1974, in a dissent condemning racial group preferences in state law school admissions as unconstitutional, "a black applicant who pulled himself out of a ghetto into junior college may thereby demonstrate a level of motivation, perseverance and ability that would lead a fair-minded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades.

The rationale is not to give handouts to people who can’t cut it, but rather to gauge long-run potential for success by (in Douglas’ words) "evaluating an applicant’s achievements in light of the barriers he had overcome."

Suddenly dismantling our entrenched structure of racial affirmative action in favor of class-based preferences would have very heavy costs, however.

First, any effort systematically to take account of disadvantages overcome, as a basis for ranking some applicants ahead of others with better paper qualifications, leads into nightmarishly arbitrary distinctions. Scalia, in his 1979 article, facetiously advanced "a modest proposal, which I call RJHS-the Restorative Justice Handicapping System," to fine-tune racial affirmative action by giving "handicapping points" based on ancestry to everyone at birth. Members of various Aryan "creditor-races" would be differentially handicapped to reflect their relative responsibility for "the suppression of the American black."

But Scalia’s proposed preferences for particularly promising poor people-PPPPP, we might call them-might require a similarly Orwellian calculus.

"Does Clarence Thomas the sharecropper’s kid get more or fewer points than the unemployed miner’s son from Appalachia?" as Kinsley asks. How many points for attending an all-black inner-city school vs. a second-rate white suburban school? How many for a family income of under $10,000? Under $20,000? For a mediocre small-town high school? A deserting father? An alcoholic mother?

More fundamentally, a tragically increasing percentage of our black children are so ravaged by hellish neighborhoods, indifferent parenting, and atrocious education that no form of affirmative action can help them: On finishing school (or dropping out), they lack the minimum skills required to do college work or hold down good jobs.

That’s why so many beneficiaries of racial affirmative action tend to be from relatively advantaged backgrounds. Abandoning such preferences now for a system of preferences for the far smaller number of poor minorities (and the larger number of poor whites) with the minimum qualifications would lead to a devastating reduction in the number of blacks and Hispanics on campuses like Harvard and Berkeley.

Such a sharp reversal of what progress we have made in integrating our elite institutions and escaping our legacy of racial oppression could signal to blacks generally that the game is rigged against them.

For the immediate future, a baleful scenario like that may be the only alternative to allowing universities to continue giving some degree of racial preference, however unfair, to children of prosperous blacks over those of white factory workers.

And in the employment context, there are still cases in which some form of remedial racial quota is the only way to end a recalcitrant employer’s continuing discrimination against minorities, and many more in which minority representation could drop precipitously without a degree of racial preference.

All such preferences are, however, mere Band-Aids for a society racked with cancerous racial stratification that will persist, even if all discrimination ceases, as long as we tolerate the poverty that so savagely denies basic skills to such a large percentage of minority children.

Clarence Thomas said in a 1987 speech that "those who attempt to capture the daily counseling, oversight, common sense, and vision of my grandparents in a governmental program are engaging in sheer folly."

But governments can at least invest in decent housing and safe neighborhoods, in which poor families might have a chance, and schools good enough to give poor kids some of the nurturing and role models that many don’t get at home, along with the skills that they need to succeed in college and the workplace.

This is not a job the Supreme Court could do for us, even if it wanted to. It is a job for a president and Congress, and governors and state legislatures, better than those we have now.