WWS 3/1999                              



                                                     IN SEARCH OF EQUALITY


At the core of what our society stands for is the principle of equality, the concept that all persons are created equal.  While the principle of equality is beyond debate,  translating it into reality is a perennial source of controversy.  And nowhere is the controversy more heated than at the intersection of equality and race.  This is the battleground of affirmative action, an infelicitous choice of words that generates more heat than light but nevertheless a verbal fixture from which escape is difficult.


The abiding mystery about affirmative action is why it should continue to occupy center stage in the debate about issues of race.  It costs very little in comparison to social services.  It doesn’t affect the vast majority of Americans.  When whites are asked in public opinion polls whether they have ever lost a job or been denied a promotion or college admission as a result of affirmative action, few say yes.  The high profile fights over college admissions involve only top ranked blacks and don’t affect the bulk of college applicants.  The great majority of colleges admit all or nearly all applicants so that affirmative action is irrelevant to most American students. 


Yet affirmative action dominates the discussion of race relations, perhaps as much as anything by default.  Other flash points are receding: crime rates are down, especially violent street crime associated by many with minorities.  Welfare rolls are dropping.  The booming economy has reduced joblessness and poverty rates, and high school graduation rates among blacks are rising.  Affirmative action also is an issue on which most people have long ago made up their mind and which they are able to debate without having to encumber themselves with facts.   


What fuels this debate more than facts are perceptions.  Ward Connerly, the driving force behind Prop. 209, put it this way:


We can’t get to the problem of moving this nation forward with respect to race unless we deal with the perception by a large number of people that there are preferences that are being given to people simply because they check a box and then benefits are conferred on the basis of checking that box.


And to some, probably not an insignificant number, giving such preferences is morally wrong.  In a recent discussion with President Clinton, Representative Canady, a Republican from Florida, said:


For the government to classify people simply based on their race is morally offensive and inconsistent with our constitutional traditions.


The oratory on the other side is no less impassioned.  Proponents like the late Judge Leon Higginbotham argue that decisions prohibiting affirmative action in higher education ignore the history and evidence of discrimination against minorities and threaten to wipe out an entire generation of minority students.


Where does the truth lie? This paper will try to look behind the perceptions and examine some of the evidence.  Some of that evidence is quantitative, much is qualitative, some is objective and much of it is subjective.  The paper deals only with affirmative action in higher education.  Employment and contracting issues are not only much lower profile but also involve quite different considerations.


At the outset there is a semantic problem.  The label “affirmative action” is a grabbag for a range of very different programs and policies all of which to some degree involve race consciousness.  Affirmative action in education can describe a system of quotas or reserved places, or  admission pools separated by race, or admission standards normed to race, or race- conscious decision making, or outreach and recruiting.  Critics of affirmative action often condemn it as a quota system but in fact, quotas today are largely a thing of the past in education and proponents of affirmative action for the most part now think of it as outreach and race-conscious admission decisions, simply taking race into account as one of many relevant factors for the purpose of furthering minority enrollment.


The affirmative action label came about by accident.  In 1961, an executive order was drafted for  President Kennedy to ban hiring discrimination by federal contractors.  A young black lawyer assigned to work on it, looking for a catchy title for the order, came up with the phrase “affirmative action.”  The Executive Order, No. 10925, attracted little attention at the time and merely called on contractors to actively promote minority employment. But business men complained that they lacked a clear definition of their obligation so this order was superseded by Executive Order 11246, issued by President Johnson, under which specific hiring goals were established. 


The classic statement of the policy underlying affirmative action was made by President Johnson in a 1965 speech at Howard University when he said:


You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line in a race and then say, ‘you are free to compete with all the others;’ it is not enough just to open the gates of opportunity, all our citizens must have the ability to walk through those gates.  Equality as a fact and as a result should be the goal.


Those words--equality of result--represent the fault line that eventually came to define the controversy over affirmative action.

By the early 1970's, affirmative action in various forms had become widely institutionalized with little controversy.  It had a broad impact on the social, economic and political life of this country.  For example, when the Pentagon sent President Carter a list of colonels to be promoted to general, the first list contained no blacks.  His Secretary of the Army sent it back with directions to include black candidates.  When the list was resubmitted, one of the names on it was Colin Powell’s.  It is estimated that during the 1970's without affirmative action there would have been only about one hundred blacks admitted to the nation’s law schools. Clarence Thomas said in 1983 that, “But for affirmative action laws, God only knows where I would be today.”  Other black leaders and scholars have expressed similar sentiments. Executive Order 11246 remains in effect, in spite of repeated Congressional threats to repeal it,  and now applies to innumerable institutions from defense contractors to most large universities which receive federal funds; Congress has attempted but has failed to repeal it.  Court decrees terminating employment discrimination suits have required affirmative action to integrate fire and police departments and other public institutions.  The voting rights act has been interpreted not only to prohibit discrimination but also to require affirmative action to increase the voting power of minorities.


And so affirmative action had become deeply embedded in the life of the country when the political climate began to change in the 1980s, challenging the validity and morality of such programs.  In a series of lawsuits white plaintiffs attacked federal and state affirmative action programs as promoting reverse discrimination.  Affirmative action programs maintained under state or federal law were subjected to heightened scrutiny under the Fourteenth and Fifth Amendments.  The Constitution, of course, prohibits persons acting under state or federal law from denying any person the equal protection of the laws on account of race.  The Supreme Court held that racial preferences violate the Constitution unless narrowly tailored to remedy past discrimination.  The existence of general societal discrimination was not considered sufficient justification--the evidence needs to show past and persisting discrimination tied to the facts of the particular case.


In the case of higher education, the Supreme Court in the 1978 Bakke decision held that reserving places for minority students in the medical school at Davis was unconstitutional.   The Court split four to four on the issue, with the deciding vote cast by Justice Powell.  The Court majority rejected the notion of benign discrimination urged by the four dissenters. But in his concurring opinion, Justice Powell said that the interest in promoting a diverse student body justified taking race into account as one of a range of factors in making admission decisions.  Because Powell’s was the swing vote, his dictum was thought to be the law until the recent decision by the Fifth Circuit Court of Appeals in Hopwood v. University of Texas.  In Hopwood the court of appeals, going much farther than it needed to decide the case, declared that any consideration of race to achieve a diverse student body is prohibited by the Fourteenth Amendment.  The Supreme Court denied review of this decision and so it remains to be seen whether Hopwood or Justice Powell’s concurrence will be the controlling law in public education.


These cases dealt only with public universities.  And state laws such as Prop.209 in California and Prop.200 recently adopted in Washington state bar race-based preferences only in public institutions.  Private colleges and universities generally remain free to make race-conscious decisions.  In most, this is not an issue because they admit all or nearly all qualified applicants.  But most of the fifty or so selective or elite schools to some degree make race-conscious decisions.  Whether this is the right thing--and whether public universities should be free to do the same--continues to be vigorously debated.  The debate has been pushed along by a growing body of literature on the subject of affirmative action in higher education. Within the last year two excellent books have appeared that make the case for each side: Stephen and Abigail Thernstrom’s Black and White in America, and The Shape of the River: Long Term Consequences of Considering Race in College and University Admissions, by William Bowen and Derek Bok.


Three pivotal issues emerge from the debate:


1) Are race conscious admission decisions still necessary?

2) Are they worth the cost and moral hazard?

3) Are they consistent with a meritocratic society?


Only the most extreme critics of affirmative action condemn it unqualifiedly.  Some like Shelby Steele and Thomas Sowell argue that affirmative action turns the clock back on racial equality, that it represents a white guilt trip that simply perpetuates a sense of black inferiority, and that it creates the wrong incentives.    Most, however, acknowledge that at least in the early years of the civil rights era, following the adoption of the 1960's civil rights laws, affirmative action was necessary and appropriate to compensate for the gaping deficit of black participation in higher education.  But these critics contend that the rise of an African-American middle class has dramatically improved the status of African-Americans.


It is true that since the end of World War II, their economic, educational and professional status has improved dramatically, both absolutely and relative to whites.  For example, in 1940, only 1% of blacks and 12% of whites had incomes of at least twice the poverty line.  Today, almost half of blacks and 75% of whites do.  In 1940 the median annual income of black males as a percentage of white males was 41%, of black females 36%.  Today, black males’ income is 67% of whites and black females’ 89% of whites.  The dramatic improvement of black females reflects their move from domestic to white collar jobs. In 1940,  the rate at which blacks completed four years of high school was about one fourth of whites,  today it is over 90%.  The rate at which blacks attend college rose from about one fourth of the rate of whites to 75%, and the rate at which they completed four years or more doubled to 55% of whites.  In 1940, only 0.1% of blacks were engineers, 0.5% were lawyers, 2.5% were physicians.  Today, 4% are engineers, 4% are lawyers and 5% are physicians. 


These numbers are, of course, both good news and bad news.  The good news is the dramatic improvement in the relative status of blacks.  The bad news is that blacks continue to lag significantly behind whites.  The bad news is made worse by the comparative rates of poverty and other indicia of disadvantage: one fourth of black families are below the poverty line, three times the rate for whites; blacks are six times as likely as whites to be victims of homicides; two-thirds of black infants are born to unwed mothers, and only one third of black children live with two parents.


It is these data about black families that are most distressing.  Statistics reflect a devastating deterioration of the black family over the last thirty to forty years. Thirty years ago, black and white men married at the same rate, today white men marry at twice the rate of black men.  In 1959, 22% of black children and 2% of white children were born out of wedlock; today 70% of black children are born out of wedlock compared to 25% of white children.    


Of course, the sexual and civil rights revolution, the ongoing emancipation of women, and the general loosening of traditional social restraints has led to a general decline of the family in the United States.  But African-Americans, and in particular African-American men, have fared much worse than whites in this period.  The unemployment rate of black males is two and a half times that of whites, much worse than it was in 1940.  Two thirds of all black children live in fatherless households, almost three times as many as forty years ago, and compared to only 18 % of white children.  The situation is worse among children living below the poverty line.  Forty years ago 60% of black children lived with intact families, today only 13% do.


This is a shocking tale of two cities.  While vast opportunities have opened to blacks, and many have risen into the middle class, others less fortunate, less competent or less motivated, have not simply been left behind but are descending more deeply into poverty and social disintegration.  Why that should have been so is not readily explained. Various factors have contributed: fundamental changes in the economy--such as the disappearance of blue collar jobs especially from urban areas where the black population is centered--have diminished opportunities for many;  the residual effects of past discrimination have impeded progress toward the education and training that is required for entry into well-paying occupations; drugs, mainly crack, have devastated black neighborhoods--in Chicago, for example, 30% of young black men have spent time in jail, 60% have criminal records--and drugs along with the welfare system may have contributed to wrong incentives; and changes in social attitudes and values have contributed to the decline of the family.


Whatever the reasons, the fact is that these trends have created an environment not conducive to the educational development of many black children. This is particularly true of inner city children who not only bear the burdens of often dysfunctional families but also face constant danger and disruption at inner city schools. On top of all that, those who wish to succeed  are often exposed to negative peer pressure that portrays academic success as uncool.


The bottom line is that many black children continue to be  severely disadvantaged.  The conditions under which they live contribute to a severe lag in academic skills and proficiency.  For example, the results of the National Assessment of Education Progress test show that the median of black 17 year olds are over three years behind their white cohorts in writing and math, four years behind in reading, and over five years behind in science.  A typical black high school senior reads at the white eighth grade level!  These figures reflect improvement over 1971 but in recent years have shown a decline.


These results, while depressing, are not unexpected for black children from disadvantaged backgrounds.  What is extremely troublesome is that they also describe children who have not been disadvantaged.  Black children from families with incomes over $70,000 have lower median SAT scores than white children from families with incomes as low as $10,000 and over.  Black children whose parents graduated from college score below white children whose parents did not finish high school.  On literacy and numeracy tests, black college graduates performed on a par with white high school graduates.


No one has offered a comprehensive explanation for these discrepancies.  Differences in the quality of schools attended, particularly the decline in quality of inner city schools, a lowering of standards and of expectations, and a deemphasis of academic subjects may all have had something to do with it.  But the lowering of standards and lessening of expectations hasn’t been confined to schools predominantly attended by black children.  Some think that negative peer pressure,  affirmative action and negative attitudes may have created wrong incentives for some black children.  Still the strikingly inferior performance across the board of black students vis-a-vis white students remains puzzling.  What it seems to show is that not all subpar performance by black children can be attributed to the social and economic handicaps under which so many have grown up.  While being disadvantaged still strongly equates with being black, being black does not equate with being disadvantaged.


In spite of these disadvantages black college attendance has risen sharply over the past thirty years.  Black attendance  tripled, from 15% to 45%, while white attendance doubled, from 26% to 55%, so the ratio of black to white attendance rose from about 60% to 80%.  But the ratio of blacks to whites completing four years of college rose only from 52% to 59%.  And not surprisingly blacks perform well below whites on the SAT, though black scores have risen ten percent since 1976 while white scores have remained static.  Black mean scores on verbal and math are 740 compared to white mean scores of 940.  2% of blacks score over 600 on verbal, compared to 10% of whites and Asians; 2% of blacks score over 650 on math compared to 13% of whites and 25% of Asians.  Again blacks from families with over $70,000 income score on a par with whites with a family income over $10,000, and blacks whose parents have a graduate degree score on a par with whites whose parents are high school graduates.  Half as many blacks as whites were in the top 10% of their class, and only about a third as many as whites had an A average. 


The bottom line is that the pool of black college applicants meeting traditional criteria for admission to selective schools remains minuscule. In 1992, only 1500 African-Americans had SAT verbal scores of 600 or above, compared to 55,000 whites.  At the graduate level, the disparity is worse.  Among 70,000 law school applicants, only 103 African-Americans had a GPA of at least B- and an LSAT of 83%, compared to 7,700 whites.


These numbers refute the contention that the movement of African-Americans into the middle class and the great social and economic progress they have made make affirmative action obsolete and no longer needed.  So the question is not whether time has passed affirmative action by--because it has not--but rather whether affirmative action is the right response to bridge the gulf of disadvantage that continues to separate black from white.


The rising rate of college attendance confirms that blacks although minimally qualified can gain admission.  Opponents of affirmative action argue, “Why should an applicant be admitted to Stanford if his scores and GPA qualify him, say, for Chico State and it has a place for him?”  The vast majority of colleges are only marginally selective and admit most applicants. No applicant with minimal qualifications would be denied a place if there were no affirmative action.  What then is the point of race-conscious admissions at selective colleges and universities when the likely result is to set up the applicants with inferior scores and GPAs for failure?  Opponents point out that there is a rough correlation of the gap between mean black and white SAT scores in the class and the drop-out rate of black freshmen at the top universities.  Thus as this gap in scores rises from 150 to 270, the black drop out rate rises from 13 to 28 %, and that rate is two to three times the white drop out rate.  The largest SAT gap was at Berkeley (while affirmative action still existed); it was 288 and the black drop out rate was 42%, compared to a white rate of 16%.  These figures, however, while somewhat illuminating, show only an overall correlation and do not necessarily prove a causal relationship.


Opponents also note that race-conscious admissions in the short run will not help the truly disadvantaged blacks.   Only a very small segment of black college applicants is affected.  Those who benefit are by necessity those most nearly like white applicants, i.e. at the top of their black cohorts.  Then why not, some say, let special consideration be given to all from disadvantaged background in race-neutral ways.  One plan is to admit the top, say, 4% students from every high school.  Studies show, however, that this would result in virtually no increase in minority admissions.  In such race-neutral plans, the pool of black eligibles would be swamped by the far greater numbers of whites, defeating the purpose of helping to overcome the disadvantage so strongly associated with race.


 Opponents point to moral hazards associated with race-conscious decision making. Even those who succeed, they say, will carry with them the stigma of having succeeded not on their merits but through affirmative action, whether true or not.  However, once admitted, students are judged on their performance and this is certainly true once they graduate and enter the professions.  And those who have had the benefit of affirmative action have not been heard to complain about it. 


Opponents say that black children will get the wrong message:  If they can get into the college of their choice on the strength of their color rather than their GPA and scores, why work?  This is a risk but its impact is limited because only a very small percentage of students will ever benefit from race-conscious decisions.


These value judgments underlying the objections to race-conscious admissions make serious points though they are not readily quantifiable.  But on the other side of the scale must be weighed the benefits.  The recent study by Bok and Bowen offers evidence of the beneficial results of race-conscious admissions.  Their analysis of the 700 black students admitted to the class of 1976 in 28 of the most selective colleges and universities--students who would not have been admitted on strictly race-neutral criteria--shows 225 obtained professional or graduate degrees, 70 became doctors, 60 became lawyers, 125 became business executives, and their average income over all was $71,000.  Instead of focusing on the failures of affirmative action, they show how it made the benefits of an education at an elite school available to blacks who went on to further the emergence of a black middle class, to achieve satisfying careers, and to strengthen the black community and improve the prospects for the next generation.  Some may see a glass half empty but others can fairly argue that it is half full.


That race-conscious admissions implicate trade-offs is clear--there are benefits as well as costs.  In the end the judgment on how to draw the balance turns heavily on the value one attaches to diversity.  In the view of the Hopwood court and many opponents, the use of race to achieve diversity undercuts the goal of the Fourteenth Amendment: the end of racially-motivated societal action.  Writing race out of the decision making process is a laudable ideal but is it consistent with reality?


Race is a reality for minority applicants who see few who look like them on campus and for the handful of minority students looking for support and encouragement.  The virtual absence of blacks supports the perception of the university being operated as a white preserve with no room for blacks and, as even opponents of affirmative action have recently acknowledged, it harms blacks’ aspirations for advancement. And white students, who will become leaders of their professions and communities, will be unprepared for the diverse world into which they will graduate.


Diversity therefore has significant value. Without some sort of race-conscious admission policy, many fear resegregation of elite universities.   As I have already shown, the pool of black applicants meeting traditional criteria for top schools is minuscule.  For example, in 1997 only 16 blacks and 45 hispanics, out of 2,700 college graduates, had a GPA and LSAT equal to the mean at Boalt Hall.  Minority admissions at UC in the current year have dropped fifty percent.  Numbers such as these confront schools with difficult choices if diversity is regarded as a value.  


The argument that race-conscious admissions result in white applicants being denied places to which they are entitled is specious. Universities do not belong to the students and are not run for the private benefit of applicants.  Even private universities are institutions intended to serve the public--that is why they enjoy tax exemption--and the interests of applicants must be accommodated to policies designed to advance a broad range of interests.  Those interests include a diverse student body whose members will enrich each other’s experience and whose graduates will serve the community in many ways--that is why GPAs and scores are never the sole criteria automatically applied to determine who is admitted. 


Furthering diversity does not mean admitting unqualified students.  Race-conscious decision making may mean a finger on the scale in choosing among roughly equally qualified marginal applicants in favor of an underrepresented minority.  It may simply recognize that GPA’s and test scores are not the exclusive measures of merit and that overcoming disadvantages can count on the scale of qualifications. For that matter a slavish devotion to a numbers-based scheme of merit overlooks the shortcomings of testing as a predictor of success.  And race-conscious admissions can also go hand in hand with academic support programs to ensure success.  


 In the best of all worlds, of course, we should attack the causes of  disadvantages by improving education all along the line. And in the long run blackness will become less relevant as the line between white and non-white in our multi-cultural society blurs. But in the short run we need to be concerned about the proper policy choices to further the goal of equality.  All agree that that goal should be equality of opportunity but how best to reach that goal remains a difficult question the answer to which is not to be found in cliches or slogans.  Equality like a diamond has many facets--depending on one’s perspective, one sees different rainbows at different points.