When Preferences Disappear

By now, there can no longer be much doubt that the days of formal race preference programs, at least in the public sector, are numbered. On November 5, California voters did what everyone had long expected, approving Proposition 209, the California Civil Rights Initiative, which prohibits any consideration of race or gender in California public education, employment, and contracting. The vote was narrower than had once been expected (and might have been narrower still had CCRI opponents not used an inflammatory and offensive television commercial, complete with a burning KKK cross, in the last weeks of the campaign). But, with a margin of 54 percent to 46 percent, it was decisive enough.

CCRI is only the most recent assault on affirmative action measures. And while Proposition 209 still faces legal challenges in federal court that may take years to resolve fully, the drift is clear. In the summer of 1995, the regents of the University of California, under heavy pressure from a governor with overweening presidential ambitions, voted to end race and gender preferences in all UC admissions and employment. In March 1996, in Hopwood v. Texas, a three-judge panel of the U.S. Fifth Circuit Court of Appeals struck down practices giving preferences to blacks and Latinos in admissions to the University of Texas Law School. In issuing its decision, the Fifth Circuit Court perpetrated an unprecedented act of judicial chutzpah, dismissing the Supreme Court's 1978 Bakke decision, which had allowed consideration of race as one "plus factor" in university admissions, as if it had never really existed. Justice Lewis Powell, the Fifth Circuit panel held, had been alone in articulating the Bakke standard in the Court's divided decision; subsequent high court decisions had conspicuously ignored it; and "it is not binding precedent on this issue." In response to the Fifth Circuit decision, Colorado abandoned its race-based scholarship program, and a number of other state university systems began reexamining their use of race preferences in admissions.

In the meantime, in a series of increasingly emphatic decisions, the U.S. Supreme Court has cast growing doubt on its willingness to uphold any race-based policy other than those narrowly tailored to remedy a specific instance of prior discrimination. It has severely restricted racial set-asides in federal contracting (Adarand v. Pena) and racial gerrymandering in drawing congressional and legislative districts (Shaw v. Hunt). The high court also declined to review a Fourth Circuit decision (Kirwin v. Podberesky) striking down a University of Maryland scholarship program for African Americans as a denial of equal protection, and it deferred review of the Hopwood decision, even though it left federal law confused and inconsistent in a highly volatile arena—and even though the Fifth Circuit decision was a direct challenge to the high court's own Bakke precedent. If one of its conservatives retires and is replaced by a Clinton appointee, the Court may respond to these challenges. But for the moment, it appears likely that the Court declined review because the liberal-to-moderate justices—Breyer, Ginsburg, Souter, Stevens—on this closely divided court are not confident they have the fifth vote necessary to overturn lower court rejections of affirmative action.

It's easy enough to dismiss any one of these developments as limited—by geography or subject or political scope or by the cynicism of the political act (and cynical was what California Governor Pete Wilson's exploitation of affirmative action certainly was). In his call to "mend it but don't end it," President Clinton vowed to protect the principle of affirmative action, and even Republican governors like George Pataki in New York, Christine Todd Whitman in New Jersey, and George Bush, Jr., in Texas, along with Jack Kemp in the years before the 1996 election, defended affirmative action programs. Still the trend is clear enough, whether one looks at the courts, which once helped advance affirmative action, at the opinion polls, or at the demographic complexities in states like California, where the growing number of minorities of all shades make it increasingly difficult to favor one group without explicitly discriminating against another.

It's also revealing that despite the surprising failure of people like Pete Wilson and Newt Gingrich to make race preferences a hot-button political issue, which is certainly what they had been hoping to do last year, there was no significant counterforce defending race-based preferences, either among the nation's leaders or the public at large. The opponents of Proposition 209 in California, fearing a low turnout of minority voters despite the upsurge of newly naturalized Latino citizens, tried to base their campaign not on the measure's impact on minorities but on what they warned would be the damage it would do to women. But that strategy, too, fell flat: On November 5, women split almost evenly on the issue, while men supported it overwhelmingly.



And yet, if the winding down of race-based affirmative action represents one declaration of social priorities—even, perhaps, the end of an era of public policy—it runs counter to another developing set of priorities, particularly in higher education, and raises a host of new questions about what, other than test scores and grades, should replace race and ethnicity in choosing candidates for admission to selective public institutions. Even as state policymakers and voters appear to be asking higher education to become more meritocratic in its admissions and hiring and as the courts increasingly insist on strict scrutiny of race-based policies in all public-sector activities, the trend in much of higher education seems to be toward broader, less objective—and sometimes more squishy—standards.

The most obvious examples of this trend are the attacks, often backed by the Department of Education's Office of Civil Rights, on objective testing—and in particular the attacks on the SAT and PSAT (which is used as one of the primary screens for National Merit Scholars)—as biased against women and minorities. In its effort to deflect the attacks and to raise the scores of women, the College Board, which designs and runs these testing programs, has already revised the PSAT by doubling the weight given to the verbal sections on the test (thereby reducing the weight of the math portion, on which men have consistently done better), and, in an agreement with OCR, will now revise it further to include items designed to test the writing skills of applicants, on which women generally do better. (College Board officials say they were going to institute the writing items anyway, but they don't deny that the timing of the announcement was advanced by federal pressure.) These revisions of standardized testing may, in themselves, be welcome reforms, but coming, as they do, in response to government pressure to make the scores of women match those of men, it suggests that the battle over affirmative action is far from over. It is merely being carried on under other names on other fronts. In the meantime, a growing number of institutions, including the whole Maryland system, are de-emphasizing the use of the SAT in admissions, or vowing to abandon it altogether.

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The alternatives most favored by politicians and other critics of race-based affirmative action are "outreach" and class-based preferences for those who have suffered economic disadvantage. Many institutions have been employing this approach for years, either by using straight income or welfare criteria or through programs that give preferences to children from families where no one had ever gone to college. Class-based affirmative action is part of the new regents formula in California—which, in a strange bow to current fads of victimology, also calls for extra consideration for those who have lived in "an abusive or otherwise dysfunctional home." (The most thorough treatment of the idea of class-based affirmative action is probably Richard D. Kahlenberg's recent book, The Remedy: Class, Race, and Affirmative Action.)

The problem is that in places like California, replacing race with class doesn't do much to maintain, much less increase, the percentage of blacks and Latinos on campus. It will merely bring in more poor Asians—Chinese, Vietnamese, Koreans—to replace the middle-class blacks and Hispanics who will be lost (most of them to private institutions) when race preferences end this year. There has been a florid array of proposals for programs that are not explicitly aimed at blacks and Latinos but that would effectively give them preferential treatment anyway. For example, the University of California at San Diego is considering a plan that would give extra credit to graduates of the state's worst high schools. But admission to the nation's handful of highly selective public institutions—the University of Texas Law School, for example, or Berkeley's Boalt Law School, or any undergraduate program at Berkeley or UCLA—is so competitive that, as long as other criteria are not changed, no device other than overt race preferences can achieve the ethnic diversity that the institutions would like. In this process there is, as Dennis Galligani, UC's assistant vice president for admissions, put it, "no surrogate for ethnicity."

For different reasons, the same is even more true in civil service employment and public-sector contracting. By definition, most of the people who apply for jobs as truck drivers, firefighters, and meter readers are already working class. More to the point, there is not much justification for class preferences in contracting or in hiring for civil service jobs: The only real rationale for establishing an ethnically diverse public-sector workforce is to increase its effectiveness and legitimacy. Sending a poor white boy to patrol Watts or Harlem is not the same as sending a black. A contractor working a street job in a big city with only white heavy-equipment operators will not enhance the social morale of the minority community even if every backhoe and tractor is driven by a poor boy. Having only white judges in courtrooms dealing mainly with minority criminal defendants is, as we have so painfully learned, no way to persuade the community that the legal system is fair, even if some of the whites come from the wrong side of the tracks.

The bigger question that follows—as much in hiring for the police department or the road crew as in choosing candidates for college or graduate school—is whether, race preferences aside, the old criteria really made sense in the first place. What, beyond minimal competence to meet the technical requirements of the task, should be required? Some positions, it is true, clearly require more formally meritocratic standards than others; but for most positions, this question is a valid one. In some respects, race preferences have always been an inadequate way of compensating for the larger shortcomings that large public systems use in selecting applicants: How well does the Law School Admissions Test or the Medical College Admissions Test predict who will be a good lawyer or a good doctor? Unlike Amherst or Princeton, where admissions officers professedly pore over applicants' folders bulging with their letters of recommendation, autobiographical essays, and descriptions of extracurricular activities (from the chess club to the volunteer summer with African refugees), admissions offices at places like the University of Texas Law School or the University of California proceed almost entirely by numbers. In the 1970s, when it became plain that grade point averages and SAT scores left the entering classes at Berkeley and UCLA embarrassingly white and Asian in a surrounding society that was increasingly Latino, the system (to oversimplify this history only slightly) simply added another set of numbers to raise the percentage of what it calls URMs (underrepresented minorities). Anything that's not quantifiable is more or less ignored. (UC does ask for essays from applicants but rarely reads them.) Which is to say that, with some glaring exceptions (friends of politicians, children of big donors) the admission system at most large public universities has always been more like a civil service system than like the admission procedures (themselves highly imperfect) that the more selective private colleges ostensibly use.



The question now is whether these numbers-based admission systems will be rationally reexamined, or whether most of the gatekeepers will simply look for new labels to put on the old dodges and keep the number system more or less intact. In the higher reaches of academic and professional selectivity, the selection criteria may be relatively self-evident, but at the lower levels, they're not easy to agree upon, especially in view of the great American ambivalence between merit and inclusion.

What should be easy to agree upon is that there is room for reform in admissions practices in most of higher education: Placing more emphasis on demonstrated performance instead of seat time, credits earned, grade point average, and test scores would be a good place to start. There is even more room in public contracting, where old-boy networks still dominate, and in blue-collar civil service, where high scores on a paper-and-pencil test may be of far less relevance than good judgment, honesty, and a host of other intangibles. That those qualities are hard to measure hardly justifies abandoning them as selection criteria. Making selection and promotion criteria really relevant to the job might do more to open jobs for minorities and women in civil service—and indeed has already done so in the many instances where artificial criteria have been scrapped (such as in the cases of irrelevant height and weight thresholds for candidates for firefighters' jobs; unnecessary paper-and-pencil tests for laborers in public utility jobs; and artificial barriers to women in a variety of combat and combat-support roles in the military). Striking down more of these barriers and better aligning entrance criteria with the jobs they select for are likely to do more for diversity than all the overt race and gender preferences in the world. One of the reasons that race-based preferences are so vehemently defended is that few minorities believe that genuine equal opportunity, the other half of the race-blind promise, will ever really be provided.

Still, the gradual rollback of race preferences provides opportunities to create more relevant standards that are long overdue. Those opportunities go beyond the long litany of arguments about fairness and racism that have been made in the course of the debate over affirmative action. What it surely will not do is end the fight between the meritocrats and the inclusivists; in America that fight is almost as old as the Republic, and it will continue.

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