## 1. In the Beginning




In 1972, affirmative action became an inflammatory public issue.
True enough, the Civil Rights Act of 1964 already had made something
called "affirmative action" a remedy federal courts could
impose on violators of the Act. Likewise, after 1965 federal
contractors had been subject to President Lyndon Johnson's Executive
Order 11246, requiring them to take "affirmative action" to
make sure they were not discriminating. But what did this 1965 mandate
amount to? The Executive Order assigned to the Secretary of Labor the
job of specifying rules of implementation. In the meantime, as the
federal courts were enforcing the Civil Rights Act against
discriminating companies, unions, and other institutions, the
Department of Labor mounted an ad hoc attack on the construction
industry by cajoling, threatening, negotiating, and generally
strong-arming reluctant construction firms into a series of region-wide
"plans" in which they committed themselves to numerical
hiring goals. Through these contractor commitments, the Department
could indirectly pressure recalcitrant labor unions, who supplied the
employees at job sites.




While the occasional court case and government initiative made the
news and stirred some controversy, affirmative action was pretty far
down the list of public excitements until the autumn of 1972, when the
Secretary of Labor's Revised Order No. 4, fully implementing the
Executive Order, landed on campus by way of directives from the
Department of Health, Education, and Welfare. Its predecessor, Order
No. 4, first promulgated in 1970, cast a wide net over American
institutions, both public and private. By extending to all contractors
the basic apparatus of the construction industry "plans,"
the Order imposed a one-size-fits-all system of 
"underutilization analyses," "goals," and
"timetables" on hospitals, banks, trucking companies,
steel mills, printers, airlines--indeed, on all the scores of
thousands of institutions, large and small, that did business with the
government, including a special set of institutions with a
particularly voluble and articulate constituency, namely, American
universities.




At first, university administrators and faculty found the rules of
Order No. 4 murky but hardly a threat to the established order. The
number of racial and ethnic minorities receiving PhDs each year and
thus eligible for faculty jobs was tiny. Any mandate to increase their
representation on campus would require more diligent searches by
universities, to be sure, but searches fated nevertheless largely to
mirror past results. The 1972 Revised Order, on the other hand, effected a
change that punctured any campus complacency: it included women among
the "protected classes" whose
"underutilization" demanded the setting of
"goals" and "timetables" for "full
utilization" (Graham 1990, 413). Unlike African-Americans and
Hispanics, women were getting PhDs in substantial and growing
numbers. If the affirmative action required of federal contractors was
a recipe for "proportional representation," then Revised
Order No. 4 was bound to leave a large footprint on campus. Some among
the professoriate exploded in a fury of opposition to the new rules,
while others responded with an equally vehement defense of
them.[2]




As it happened, these events coincided with another development,
namely the "public turn" in philosophy. For several
decades Anglo-American philosophy had treated moral and political
questions obliquely. On the prevailing view, philosophers were suited
only to do "conceptual analysis"--they could lay
bare, for example, the conceptual architecture of the idea of justice,
but they were not competent to suggest political principles,
constitutional arrangements, or social policies that actually did
justice. Philosophers might do "meta-ethics" but not
"normative ethics." This viewed collapsed in the 1970s
under the weight of two counter-blows. First, John Rawls published in
1971 *A Theory of Justice*, an elaborate, elegant, and inspiring
defense of a *normative* theory of justice (Rawls 1971).
Second, in the same year *Philosophy & Public Affairs*,
with Princeton University's impeccable pedigree, began life, a few
months after Florida State's *Social Theory and
Practice*. These journals, along with a re-tooled older
periodical, *Ethics*, became self-conscious platforms for
socially and politically engaged philosophical writing, born out of
the feeling that in time of war (the Vietnam War) and social tumult
(the Civil Rights Movement, Women's Liberation), philosophers ought to
do, not simply talk about, ethics. In 1973, *Philosophy &
Public Affairs* published Thomas Nagel's "Equal Treatment
and Compensatory Justice" (Nagel 1973) and Judith Jarvis
Thomson's "Preferential Hiring" (Thomson 1973), and the
philosophical literature on affirmative action burgeoned
 forth.[3]




In contention was the nature of those "goals" and
"timetables" imposed on every contractor by Revised Order
No. 4. Weren't the "goals" tantamount to
"quotas," requiring institutions to use racial or gender
preferences in their selection processes? Some answered
"no" (Ezorsky 1977, 86). Properly understood, affirmative
action did not require (or even permit) the use of gender or racial
preferences. Others said "yes" (Goldman 1976, 182-3).
Affirmative action, if it did not impose preferences outright, at
least countenanced them. Among the yea-sayers, opinion divided
between those who said preferences were morally permissible and those
who said they were not. Within the "morally permissible"
set, different writers put forward different justifications.


## 2. The Controversy Engaged




The essays by Thomson and Nagel defended the use of preferences but on
different grounds. Thomson endorsed job preferences for women and
African-Americans as a form of redress for their past exclusion
from the academy and the workplace. Preferential policies, in her
view, worked a kind of justice. Nagel, by contrast, argued that
preferences might work a kind of social good, and without doing
violence to justice. Institutions could for one or another good
reason properly depart from standard meritocratic selection criteria
because the whole system of tying economic reward to earned
credentials was itself indefensible.




Justice and desert lay at the heart of subsequent arguments. Several
writers took to task Thomson's argument that preferential hiring
justifiably makes up for past wrongs. Preferential hiring seen as
redress looks perverse, they contended, since it benefits
individuals (African-Americans and women possessing good educational
credentials) least likely harmed by past wrongs while it burdens
individuals (younger white male applicants) least likely to be
responsible for past wrongs (Simon 1974, 315-19; Sher 1975, 162;
Sher 1979, 81-82; and Goldman 1976, 
190-1).[4]
 Instead of doing justice, contended the critics, preferential
treatment violated rights. What rights were at issue? The right of an
applicant "to equal consideration" (Thomson 1973, 377;
Simon 1974, 312), the right of the maximally competent to an open
position (Goldman 1976, 191; Goldman 1979, 24-8), or the right
of everyone to equal opportunity (Gross 1977a, 382; Gross 1978,
97). Moreover, according to the critics, preferential treatment
confounded desert by severing reward from a "person's character,
talents, choices and abilities" (Simon 1979, 96), by
"subordinating merit, conduct, and character to race"
(Eastland and Bennett 1979, 144), and by disconnecting outcomes from
actual liability and damage (Gross 1978, 125-42).




Defenders of preferences were no less quick to enlist justice and
desert in their cause. Mary Anne Warren, for example, argued that in a
context of entrenched gender discrimination, gender preferences might
improve the "overall fairness" of job selections. Justice
and individual desert need not be violated.



> 
> 
> If individual men's careers are temporarily set back because
> of...[job preferences given to women], the odds are good that
> these same men will have benefited in the past and/or will benefit in
> the future--not necessarily in the job competition, but in some
> ways--from sexist discrimination against women. Conversely, if
> individual women receive apparently unearned bonuses [through
> preferential selection], it is highly likely that these same women will
> have suffered in the past and/or will suffer in the future
> from...sexist attitudes. (Warren 1977, 256)
> 
> 




Likewise, James Rachels defended racial preferences as devices to
neutralize unearned advantages by whites. Given the pervasiveness of
racial discrimination, it is likely, he argued, that the superior
credentials offered by white applicants do not reflect their greater
effort, desert, or even ability. Rather, the credentials reflect their
mere luck at being born white. "Some white...[applicants]
have better qualifications...only because they have not had to
contend with the obstacles faced by their African-American
competitors" (Rachels 1978, 162). Rachels was less confident
than Warren that preferences worked uniformly accurate
offsets. Reverse discrimination might do injustice to some whites; yet
its absence would result in injustices to African-Americans who have
been unfairly handicapped by their lesser advantages.




Rachels' diffidence was warranted in light of the counter-responses.
If racial and gender preferences for jobs (or college admissions) were
supposed to neutralize unfair competitive advantages, they needed to
be calibrated to fit the variety of backgrounds aspirants brought to
any competition for these goods. Simply giving blanket preferences to
African-Americans or women seemed much too ham-handed an approach if
the point was to micro-distribute opportunities fairly (Sher 1975,
165ff).


## 3. Rights and Consistency




To many of its critics, reverse discrimination was simply
incoherent. When "the employers and the schools *favor*
women and blacks," objected Lisa Newton, they commit the same
injustice perpetrated by Jim Crow discrimination. "Just as the
previous discrimination did, this reverse discrimination violates the
public equality which defines citizenship" (Newton 1973,
 310).[5]




William Bennett and Terry Eastland likewise saw racial preferences
as in some sense illogical:



> 
> 
> To count by race, to use the means of numerical equality to achieve
> the end of moral equality, is counterproductive, for to count by race
> is to deny the end by virtue of the means. The means of race counting
> will not, cannot, issue in an end where race does not 
>  matter (Eastland and Bennett 1979,
>  149).[6]
> 




When Eastland and Bennett alluded to those who favored using race to
get to a point where race doesn't count, they had in mind specifically
the Supreme Court's Justice Blackmun who, in the famous 1978
*Bakke* case (discussed below), put his own view in just those
simple terms. For Blackmun, the legitimacy of racial preferences was
to be measured by how fast using them moves us toward a society where
race doesn't matter (a view developed in subtle detail by the
philosopher Richard Wasserstrom in Wasserstrom 1976). While the
critics of preferences claimed to find the very idea of using race to
end racism illogical and incoherent, they also fell back on principle
to block Blackmun's instrumental defense should it actually prove both
reasonable and plausible. "The moral issue comes in classic
form," wrote Carl Cohen. "Terribly important
objectives...appear to require impermissible means." Cohen asked,
"might we not wink at the Constitution this once" and allow
preferences to do their good work (Cohen 1995, 20)? Neither he nor
other critics thought so. Principle must hold firm. "[I]n the
distribution of benefits under the laws *all* racial
classifications are invidious" (Cohen 1995, 52).




But what, exactly, *is* the principle--constitutional or
moral--that always bars the use of race as a means to
"terribly important objectives"? Alan Goldman did more
than anyone in the early debate to formulate and ground a relevant
principle. Using a contractualist framework, he surmised that rational
contractors would choose a rule of justice requiring positions to be
awarded by competence. On its face, this rule would seem to preclude
filling positions by reference to factors like race and gender that
are unrelated to competence. However, Goldman's
"rule" blocked preferences only under certain empirical
conditions. Goldman explained the derivation of the rule and its
consequent limit this way:



> 
> 
> The rule for hiring the most competent was justified as part of a
> right to equal opportunity to succeed through socially productive
> effort, and on grounds of increased welfare for all members of society.
> Since it is justified in relation to a right to equal opportunity, and
> since the application of the rule may simply compound injustices when
> opportunities are unequal elsewhere in the system, the creation of more
> equal opportunities takes precedence when in conflict with the rule for
> awarding positions. Thus short-run violations of the rule are justified
> to create a more just distribution of benefits by applying the rule
> itself in future years. (Goldman 1979, 164-165).
> 
> 




In other words, if "terribly important
objectives" having to do with
equalizing opportunities in a system rife with unjust inequalities could in
fact be furthered by measured and targeted reverse
discrimination, justice wouldn't stand in the way. Goldman's principle
did not have the adamantine character Cohen and other critics sought
in a bar to preferences. Where can such an unyielding principle be
found? I postpone further examination of this question until I discuss
the *Bakke* case, below, whose split opinions constitute an
extended debate on the meaning of constitutional equality.


## 4. Real-World Affirmative Action: The Workplace




The terms of the popular debate over racial and gender preferences
often mirrored the arguments philosophers and other academics were
making to each other. Preference's defenders offered many reasons to
justify them, reasons having to do with compensatory or distributive
justice, as well as reasons having to do with social utility (more
African-Americans in the police department would enable it better to
serve the community, more female professors in the classroom would
inspire young women to greater achievements). Critics of preferences
retorted by pointing to the law. And well they should, since the text
of the Civil Rights Act of 1964 seemed a solid anchor even if general
principle proved elusive. Title VI of the Act promised that
"[n]o person...shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial
 assistance."[7]
 Title VII similarly prohibited
all employment practices that discriminated on the basis of race,
gender, religion, or national
 origin.[8]





In face of the plain language of Titles VI and VII, how did
preferential hiring and promotion ever arise in the first place? How
could they be justified legally? Part of the answer lies in the meaning
of "discrimination." The Civil Rights Act did not define
the term. The federal courts had to do that job themselves, and the
cases before them drove the definition in a particular direction. Many
factories and businesses prior to 1964, especially in the South, had
in place overtly discriminatory policies and rules. For example, a
company's policy might have openly relegated African-Americans to the
maintenance department and channeled whites into operations, sales,
and management departments, where the pay and opportunities for
advancement were far better. If, after passage of the Civil Rights
Act, the company willingly abandoned its openly segregative policy,
it could still carry forward the effects of its past segregation
through other already-existing *facially neutral* rules. For example, a
company policy that required workers to give up their seniority
in one department if they transferred to another would have locked in
place older African-American maintenance workers as effectively as the
company's own prior segregative rule that made them ineligible to transfer
at all. Consequently, courts began striking down facially neutral
rules that carried through the effects of an employer's past
discrimination, regardless of the original intent or provenance of the
rules. "Intent" was effectively decoupled from
"discrimination." In 1971, the Supreme Court ratified this
process, giving the following
construction of Title VII:



> 
> 
> The objective of Congress in the enactment of Title VII...was
> to achieve equality of employment opportunities and remove barriers
> that have operated in the past to favor an identifiable group of white
> employees over other employees. Under the Act, practices, procedures,
> or tests neutral on their face, and even neutral in terms of intent,
> cannot be maintained if they operate to "freeze" the status
> quo of prior discriminatory employment practices.
> 
> 
> 
> 
> What is required by Congress is the removal of artificial,
> arbitrary, and unnecessary barriers to employment when the barriers
> operate invidiously to exclude on the basis of racial or other
> impermissible
>  classification.[9]
> 
> 
> 
> 




In a few short paragraphs the Court advanced from proscribing
practices that froze in place the effects of a firm's own past
discrimination to proscribing practices that carried through the
effects of past discrimination generally. The Court characterized
statutory discrimination as *any exclusionary practice not necessary
to an institution's activities*. Since many practices in most
institutions were likely to be exclusionary, rejecting minorities and
women in greater proportion than white men, all institutions needed to
reassess the full range of their practices to look for, and correct,
discriminatory effect. Against this backdrop, the generic idea of
affirmative action took form:



> 
> 
> Each institution should effectively monitor its practices for
> exclusionary effect and revise those that cannot be defended as
> "necessary" to doing business. In order to make its
> monitoring and revising effective, an institution ought to predict, as
> best it can, how many minorities and women it would select over time,
> were it successfully nondiscriminating. These predictions constitute
> the institution's affirmative action "goals," and failure
> to meet the goals signals to the institution (and to the government)
> that it needs to revisit its efforts at eliminating exclusionary 
> practices. There may still remain practices that ought to be modified or
>  eliminated.[10]
> 




The point of such affirmative action: to induce change in institutions
so that they could comply with the nondiscrimination mandate of the
Civil Rights Act.




However, suppose this self-monitoring and revising fell short? In
early litigation under the Civil Rights Act, courts concluded that some
institutions, because of their histories of exclusion and
their continuing failure to find qualified women or minorities, needed
stronger medicine. Courts ordered these institutions to adopt
"quotas," to take in specific numbers of formerly excluded
groups on the assumption that once these new workers were securely
lodged in place, the institutions would adapt to this new
 reality.[11]




Throughout the 1970s, courts and government enforcement agencies
extended this idea across the board, requiring a wide range of firms
and organizations--from AT&T to the Alabama Highway
Patrol--temporarily to select by the numbers. In all these cases,
the use of preferences was tied to a single purpose: to prevent
ongoing and future discrimination. Courts carved out this
justification for preferences not through caprice but through
necessity. They found themselves confronted with a practical dilemma
that Congress had never envisaged and thus never addressed when it
wrote the Civil Rights Act. The dilemma was this: courts could impose
racial preferences to change foot-dragging or inept defendants (and by
doing so apparently transgress the plain prohibition in Title VII) or
they could order less onerous steps they knew would be ineffective,
thus letting discrimination continue (and by doing so violate their
duty under Title VII). Reasonably enough, the federal courts resolved
this dilemma by appeal to the broad purposes of the Civil Rights Act
and justified racial preferences where needed to prevent ongoing and
future
 discrimination.[12]




Thus, preferential affirmative action in the workplace served the
same rationale as the non-preferential sort. Its purpose was
*not* to compensate for past wrongs, offset unfair advantage,
appropriately reward the deserving, or yield a variety
of social goods; its purpose was to change institutions so they could
comply with the nondiscrimination mandate of the Civil Rights Act.


## 5. Real-World Affirmative Action: The University




In the 1970s, while campuses were embroiled in debate about how to
increase African-Americans and women on the faculty, universities were
also putting into effect schemes to increase minority presence within
the student body. Very selective universities, in particular, needed
new initiatives because only a handful of African-American and
Hispanic high school students possessed test scores and grades good
enough to make them eligible for admission. These institutions faced a
choice: retain their admissions criteria unchanged and live with the
upshot--hardly any African-Americans and Hispanics on
campus--or fiddle with their criteria to get a more substantial
representation. Most elected the second path.




The Medical School of the University of California at Davis
exemplified a particularly aggressive approach. It reserved sixteen of
the one hundred slots in its entering classes for minorities. In 1973
and again in 1974, Allan Bakke, a white applicant, was denied
admission although his test scores and grades were better than most or
all of those admitted through the special program. He sued. In 1977,
his case, *Regents of the University of California v. Bakke*,
reached the Supreme Court. The Court rendered its decision a year
 later (438 U.S. 265 [1978]).[13]




An attentive reader of Title VI of the Civil Rights Act might have
thought this case was an easy call. So, too, thought four justices on
the Supreme Court, who voted to order Bakke admitted to the Medical
School. Led by Justice Stevens, they saw the racially segregated,
two-track scheme at the Medical School (a recipient of federal funds)
as a clear violation of the plain language of the Title.




Four other members of the Court, led by Justice Brennan, wanted very
keenly to save the Medical School program. To find a more attractive
terrain for doing battle, they made an end-run around Title VI, arguing
that, whatever its language, it had no independent meaning itself. It
meant in regard to race only what the Constitution
 meant.[14]
 Thus,
instead of having to parse the stingy and unyielding language of Title
VI ("no person shall be subjected to...on the ground of
race"), the Brennan group could turn their creative energies to
interpreting the broad and vague language of the Fourteenth Amendment
("no person shall be denied the equal protection of the
laws"), which provided much more wiggle-room for justifying
racial preferences. The Brennan justices persuaded one other member,
Justice Powell, to join them in their view of Title VI. But Powell
didn't agree with their view of the Constitution. He argued that the
Medical School's policy was unconstitutional and voted that Bakke must
be admitted. His vote, added to the four votes of the Stevens group,
meant that Allan Bakke won his case and that Powell got to write the
opinion of the Court. The Brennan strategy didn't reap the fruit it
intended.




Against the leanings of the Brennan group, who would distinguish
between "benign" and "malign" uses of race and
deal more leniently with the former, Powell insisted that the
Fourteenth Amendment's promise of "equal protection of the
law" must mean the same thing for all, black and white alike. To
paraphrase Powell:



> 
> 
> The Constitution can tolerate no "two-class" theory of
> equal protection. There is no principled basis for deciding between
> classes that deserve special judicial attention and those that don't.
> To think otherwise would involve the Court in making all kinds of
> "political" decisions it is not competent to make. In
> expounding the Constitution, the Court's role is to discern
> "principles sufficiently absolute to give them roots throughout
> the community and continuity over significant periods of time, and to
> lift them above the pragmatic political judgments of a particular time
> and place" (*Bakke*, at 295-300 [Powell quoting Cox 1976,
> 114]).
> 
> 




What, then, was the practical meaning of a "sufficiently
absolute" rendering of the principle of equal protection? It was
this: when the decisions of state agents 'touch upon an
individual's race or ethnic background, he is entitled to a judicial
determination that the burden he is asked to bear on that basis is
precisely tailored to serve a compelling governmental
 interest (*Bakke*, at 300).






Powell, with this standard in hand, then turned to look at the four
reasons the Medical School offered for its special program: (i) to
reduce "the historic deficit of traditionally disfavored
minorities in medical schools and the medical profession;" (ii)
to counter "the effects of societal discrimination;" (iii)
to increase "the number of physicians who will practice in
communities currently underserved;" and (iv) to obtain "the
educational benefits that flow from an ethnically diverse student
 body" (*Bakke*, at 307). Did any or all of them specify a
compelling governmental interest? Did they necessitate use of racial
preferences?




As to the first reason, Powell dismissed it out of hand.



> 
> 
> If [the School's] purpose is to assure within its student body some
> specified percentage of a particular group merely because of its race
> or ethnic origin, such a preferential purpose must be rejected not as
> insubstantial but as facially invalid. Preferring members of any one
> group for no reason other than race or ethnic origin is discrimination
> for its own sake.




As to the second reason, Powell allowed it more force. A state has a
legitimate interest in ameliorating the effects of past discrimination.
Even so, contended Powell, the Court,



> 
> 
> has never approved a classification that aids persons perceived as
> members of relatively victimized groups at the expense of other
> innocent individuals in the absence of judicial, legislative, or
> administrative findings of constitutional or statutory
>  violations (*Bakke*, at 308).
> 
> 
> 
> And the Medical School does not purport to have made, and is in no
> position to make, such findings. Its broad mission is education, not
> the formulation of any legislative policy or the adjudication of
> particular claims of illegality....[I]solated segments of our vast
> governmental structures are not competent to make those decisions, at
> least in the absence of legislative mandates and legislatively
> determined criteria (*Bakke*, at 309).
> 
> 
> 




As to the third reason, Powell found it, too, insufficient. The
Medical School provided no evidence that the best way it could
contribute to increased medical services to underserved communities was
to employ a racially preferential admissions scheme. Indeed, the
Medical School provided no evidence that its scheme would result in any
benefits at all to such
 communities (*Bakke*, at 311).




This left the fourth reason. Here Powell found merit. A university's
interest in a diverse student body is legitimated by the First
Amendment's implied protection of academic freedom. This constitutional
halo makes the interest "compelling." However, the Medical
School's use of a racial and ethnic classification scheme was not
"precisely tailored" to effect the School's interest in
diversity, argued Powell.



> 
> 
> The diversity that furthers a compelling state interest encompasses
> a far broader array of qualifications and characteristics of which
> racial or ethnic origin is but a single though important element. [The
> Medical School's] special admissions program, focused solely on ethnic
> diversity, would hinder rather than further attainment of genuine
>  diversity (*Bakke*, at 316).
> 
> 




The diversity which provides an educational atmosphere
"conducive to speculation, experiment and creation"
includes a nearly endless range of experiences, talents, and attributes
that students might bring to campus. In reducing diversity to racial
and ethnic quotas, the Medical School wholly misconceived this
important educational interest.




In sum, although the last of the Medical School's four reasons
encompassed a "compelling governmental interest," the
School's special admissions program was not necessary to effect the
interest. The special admissions program was unconstitutional. So
concluded Justice Powell.


## 6. Equality's Rule




This was a conclusion Justice Brennan tried vigorously to forestall.
Brennan agreed with Powell that "equal protection" must
mean the same thing--that is, remain one rule--whether
applied to blacks or whites. But the same rule applied to different
circumstances need not yield the same results. Racial preferences
created for different reasons and producing different outcomes need not
all be judged in the same harsh, virtually fatal, manner. This point
was the crux of Brennan's defense of the Medical School's policy.




Powell thought there was no principled way to distinguish
"benign" from "malign" discrimination, but
Brennan insisted there was. He argued that if the Court looked
carefully at its past cases striking down Jim Crow laws, it would see
the principle at work. What the Court found wrong in Jim Crow was that
it served no purpose except to mark out and stigmatize one group of
people as inferior. The "cardinal principle" operating in
the Court's decisions condemned racial classifications "drawn on
the presumption that one race is inferior to another" or that
"put the weight of government behind racial hatred and
 separation" (*Bakke*, at 358 [Brennan, dissenting]).
 Brennan agreed with Powell that no public
racial classification motivated by racial animus, no classification
whose purpose is to stigmatize people with the "badge of
inferiority," could withstand judicial scrutiny. However, the
Medical School's policy, even if ill-advised or mistaken, reflected a
public purpose far different from that found in Jim Crow. The policy
ought not be treated as though it were cut from the same cloth.




Brennan granted that if a state adopted a racial classification for
the purpose of humiliating whites, or stigmatizing Allan Bakke as
inferior and confining him to second-class citizenship, that
classification would be as odious as Jim Crow. But the Medical School's
policy had neither this purpose nor this effect. Allan Bakke may have
been upset and resentful at losing out under the special plan, but he
wasn't "in any sense stamped as an inferior by the Medical
School's rejection of him." Nor did his loss constitute a
"pervasive injury," in the sense that wherever he went he
would be treated as a "second-class citizen" because of his
 color (*Bakke*, at 376 [Brennan, dissenting]).




In short, argued Brennan, the principle expressed in the Equal
Protection Clause should be viewed as an *anti-caste principle*,
a principle that uniformly and consistently rejects *all* public
law whose purpose is to subject people to an inferior and degraded
station in life, whether they are black or 
 white.[15]
 Of course, given
the asymmetrical position of whites and blacks in our country, we are
not likely to encounter laws that try to stigmatize whites as an
inferior caste (much less succeed at it). But this merely shows that a
principle applied to different circumstances produces different
results. Because the Medical School's program sought to undo the
effects of a racial caste system long-enduring in America, it
represented a purpose of great social importance and should not be
found Constitutionally infirm: so maintained
 Brennan (*Bakke*, at 363 [Brennan, dissenting]).




Justice Powell never successfully engaged this way of reading
"constitutional equality." His insistence on clear, plain,
unitary, absolute principle did not cut against the Brennan view. The
issue between Powell and Brennan was not the consistency and stringency
of the principle but its content. If the Constitution says, "The
state cannot deliberately burden someone by race *if its purpose is
to create or maintain caste*," then constitutional law
doesn't block any of the Medical School's
 justifications.[16]




If we turn away from exegesis of the Constitution, are we likely to
find in political theory itself any principle of equality implying that
*every* use of racial preferences in *every* circumstance
works an intolerable injustice? 



The prospects seem dim. Won't very general notions of equality
lend themselves to defending affirmative action (and the social
inclusion it effects) as well as condemning it (and the racial
non-neutrality it
 involves)?[17] 
The challenge here is well-illustrated by
Carl Cohen's most recent effort, in a debate with James Sterba,
to extract a strict prohibition on racial preferences from the
Aristotelian principle that "equals should be treated
equally" (Cohen and Sterba 2003, 23). This principle, urges
Cohen, "certainly entails at least this: It is wrong, always and
everywhere, to give special advantage to any group simply on the basis
of physical characteristics that have no relevance to the award given
or the burden imposed" (Cohen and Sterba 2003, 25). Whether
anything interesting follows from this proposition depends on how we
construe "relevance." Cohen admits that public policy may
rightly treat some people differently because of their physical
characteristics. For example, the state might offer special assistance
to the old or disabled. Now, this example suggests that the relevance
of physical differences is something independent of social policy. Age
and disability, it seems, are real features of persons and public
policy simply tracks them. However, the difference that differences
make is not something itself given by nature; it is determined by
public purposes. Age and disability are *made* relevant in this
manner--in the one case, by the social purpose of assuring that
people do not have to live in poverty when they can no longer work; in
the other case, by the social purpose of assuring that people are not
foreclosed from developing and marketing their talents by impediments
in the (largely constructed) physical environment. 




Purpose determines relevancy, and this is true whether or not the
relevant differences are physical. If the nation thinks it desirable to change white
institutions so that they are less uniformly white, that purpose links
skin color to recruitment.




Because the Aristotelian principle by itself doesn't rule out
racial preferences (since blacks and whites may be relevantly
different with respect to certain legitimate public purposes), it is
not surprising that Cohen also invokes a substantive conception of
equality: "All members of humankind are equally ends in themselves,
all have equal dignity--and therefore all are entitled to equal
respect from the community and its laws" (Cohen and Sterba 2003,
24). This principle, however, brings us back to the interpretive
questions about "equal protection of the laws" played out in the
Powell-Brennan exchange in Bakke. By Justice Brennan's lights,
Allen Bakke's basic dignity was not violated. The Medical
School's two-track policy that resulted in Bakke's
rejection did not, by intent or effect, stigmatize him as inferior, or
mark him off as a member of a despised caste, or turn him into a
second-class citizen. Bakke arguably had to bear a particular burden
because of his race but the burden was not significantly different
objectively from others that public policy might have thrown his
way. If the Medical School had reserved sixteen of its seats for
applicants from economically deprived backgrounds, no one would have
suggested that it had violated the equal protection clause of the
Fourteenth Amendment. Yet under this hypothetical policy Allan Bakke
could have lost out as well--lost out to low-income applicants
whose college grades and MCAT scores were inferior to his own. Allen
Bakke may have felt aggrieved at losing out under the Medical
School's policy of racial preferences, but it is not enough to
show that those who lose out under some public scheme feel offended or
disgruntled. Cohen needs to specify a conception of dignity in which
bearing unequal burdens on behalf of urgent social ends invariably
amounts to an assault on dignity if the burdens happen to be assigned
by race. This specification remains unfinished in his work so far.



## 7. Diversity's Dominion




How, if it held the Medical School's policy unconstitutional, did
Justice Powell's *Bakke* opinion become the basis upon which
universities across the land enacted--or
maintained--racially preferential admissions policies?




If Powell had concluded with his assessment of the Medical School's
four justifications, *Bakke* would have left university
affirmative action in a precarious situation. However, he didn't stop
there. In an earlier ruling on Bakke's lawsuit, the California Supreme
Court had forbidden the Medical School to make any use of race or
ethnicity in its admissions decisions. Powell thought this went too
far. Given higher education's protected interest in
"diversity," and given that a student's race or ethnicity
*might* add to diversity just in the same way that her age, work
experience, family background, special talents, foreign language
fluency, athletic prowess, military service, and unusual
accomplishments might, Powell vacated that portion of the California
Supreme Court's order.




Then he added some dicta for guidance. If universities want to
understand diversity and the role that race and ethnicity might play in
achieving it, they should look to Harvard, proposed Powell, and he
appended to his opinion a long statement of Harvard's affirmative action program.
In such a program, Powell contended, racial or ethnic background
might



> 
> 
> be deemed a "plus" in a particular applicant's file, yet
> it does not insulate the individual from comparison with all other
> candidates for the available seats....This kind of program treats
> each applicant as an individual in the admissions process. The
> applicant who loses out on the last available seat to another candidate
> receiving a "plus" on the basis of ethnic background will
> not have been foreclosed from all consideration for that seat simply
> because he was not the right color or had the wrong surname. It would
> mean only that his combined qualifications...did not outweigh
> those of the other applicant. His qualifications would have been
> weighed fairly and competitively, and he would have had no basis to
> complain of unequal treatment under the Fourteenth
>  Amendment (*Bakke*, at 318, 319).
> 




In these off-hand comments, universities saw a green light for pushing
ahead aggressively with their affirmative action programs. Justice
Powell's basic holding could not have been plainer: any system like
the Medical School's that assessed applications along two different
tracks defined by race or that used numerical racial quotas must fail
constitutional muster. Yet by the mid-1980s universities across the
land had in place systems of admissions and scholarships that
exhibited one or both of these features. When the University of
Maryland's Banneker scholarships--awarded only to
African-American students--were held in violation of the
Constitution in 1994, the house of cards forming university
affirmative action began to
 fall.[18]
 In 1996, the Court of Appeals for
the Fifth Circuit struck down the University of Texas Law School's two-track
admissions program.
 In 1998, the Court of Appeals for the First Circuit struck down a Boston plan
assigning students to selective high schools by
 race.[19]
 In 2001, two more schools saw their admissions programs invalidated
by federal courts: the University of
 Georgia[20]
 and the University of Michigan Law
 School.[21]
 In many of these cases, educational
institutions were using schemes that made race something very much more than
Justice Powell's "plus"
 factor.[22]
 The Fifth Circuit Court's ruling in the University of Texas case (*Hopwood
v. Texas*, 78 F 3d 932 [Fifth Circuit, 1996]) threw a cloud
even over this small window for affirmative action, boldly asserting
that the *Bakke* holding was now dead as law and that race
could not be used at all in admissions.




Given Justice Powell's singular opinion, supported by no one else on
the Court, and given the drift of Supreme Court decisions on racial
preferences since
 1978,[23]
 the *Hopwood* court was not
outlandish, if a bit presumptuous, in declaring Powell's holding in
*Bakke* dead. As it happened, Powell's opinion was far from dead.
In the University of Michigan Law School case, *Grutter v.
Bollinger*, eventually decided by the Supreme Court in June 2003,
Justice Sandra Day O'Connor's lead opinion declared: "today we
endorse Justice Powell's view that student body diversity is a
compelling state interest that can justify the use of race in
university admissions" (*Grutter v. Bollinger*, 539
U.S. 306 [2003], at 330). Diversity was alive after all. But how it
worked its affirmative action elixir remained as unclear in 2003 as it
had been in 1978.




To see why, consider how in *Grutter* Justice
O'Connor posed the issue:



> 
> 
> The [Law School's] policy aspires to "achieve that
> diversity which has the potential to enrich everyone's education
> and thus make a law class stronger than the sum of its
> parts."...The policy does not restrict the types of
> diversity contributions eligible for substantial weight in the
> admissions process, but instead recognizes "many possible bases
> for diversity admissions."...The policy does, however,
> reaffirm the Law School's longstanding commitment to "one
> particular type of diversity," that is, "racial and ethnic
> diversity with special reference to the inclusion of students from
> groups which have been historically discriminated against"
> (*Grutter*, at 325).
> 
> 




Now, posing the issue this way and allowing the Law School to assert a
special interest in "one particular type of diversity"
invites the conflation of *general* diversity--a diversity
of opinions, experiences, backgrounds, talents, aspirations, and
perspectives--with *ethnic* and *racial* diversity
that Justice Powell appeared strongly to resist. After all, the
Medical School too had asserted in its defense a similar special
interest.




Recall Justice Powell's principal objection to the Medical School's
set-asides. In making the race or ethnicity of an applicant a
"plus," a scheme like Harvard's does



> 
> 
> not insulate the individual from comparison with all other candidates
> for the available seats. The file of a particular African-American
> applicant may be examined for his potential contribution to diversity
> without the factor of race being decisive when compared, for example,
> with that of an applicant identified as an Italian-American if the
> latter is thought to exhibit qualities more likely to promote
> beneficial educational pluralism....In short, an admissions
> program operated in this way is flexible enough to consider all
> pertinent elements of diversity in light of the particular
> qualifications of each applicant.... This kind of program treats
> each applicant as an individual in the admissions
>  process (*Bakke*, at 318-19).
> 
> 




By contrast, Allan Bakke was not able to compete for all one hundred
seats at the Medical School; sixteen were reserved for candidates not
like him.




It is Powell's resistance to this reservation that underpins Justice
O'Connor's opinion in *Grutter*, where she observed:



> 
> 
> We find that the Law School's admissions program bears the hallmark
> of a narrowly tailored plan. As Justice Powell made clear in
> *Bakke*, truly individualized consideration demands that race be
> used in a flexible, non-mechanical way. It follows from this mandate
> that universities cannot establish quotas for members of certain racial
>  groups (*Grutter*, at 337).
> 
> 




What vindicated the Law School in O'Connor's eyes was its
"highly individualized, holistic review of each applicant's file,
giving serious consideration to all the ways an applicant might
contribute to a diverse educational
environment" (*Grutter*, at
 339).[24]
 This "individualized consideration" is crucial; in
*Gratz v. Bollinger*, decided the same day as
*Grutter*, Justice O'Connor switched sides to hold
unconstitutional the undergraduate admissions process at the
University of Michigan. The undergraduate admissions office operated
differently than the Law School. It computed an index score for each
applicant by assigning numerical points for academic factors such as
high school grades, admissions test scores, quality of high school,
strength of curriculum; and for nonacademic factors such as being a
resident of Michigan, a child of an alumnus, a recruited athlete, or a
member of "an underrepresented minority group." An
applicant falling in this last category automatically received 20
 points (*Gratz v. Bollinger*,
539 U. S. 244 [2003], at 287).
 In O'Connor's view, this "mechanical" procedure meant
that the undergraduate admissions office did not fully take account in
each application "of all factors that may contribute to student
body
 diversity" (*Gratz*, at 288).
 




But O'Connor's conclusion here simply draws us back to the lacuna in
Justice Powell's *Bakke* opinion. Why should the undergraduate
admissions office take account of *all* the factors that may
contribute to student body diversity if it especially wants to select
from certain parts of the diversity spectrum? Why can't it, like the
Law School, claim a special interest in "one particular type of
diversity"? Why bar the undergraduate admissions office from
using an effective tool to promote its interest even if the tool is
"mechanical"? In fact, the Law School's
"non-mechanical" procedure differed from the undergraduate
admissions policy only on its face, not in its results. During
admissions season, the Law School's director of admissions frequently
consulted the "daily reports" that "kept track of
the racial and ethnic composition" of the incoming class. He did
so to make sure a "critical mass" of minority students was
 included (*Grutter*, at 326).
 In short, the Law School
"managed" its admissions process so that roughly 6 to 7
percent of each entering class was African-American. The undergraduate
admissions procedure, with its index scores, yielded a similar
 outcome (*Grutter*, at 367-69 [Rehnquist, dissenting] and 374 [Kennedy,
dissenting]).
 Only surface appearance distinguished the
two procedures. Justice Scalia called
the Law School's "holistic" admissions process "a
sham," and not without
 reason (*Grutter*, at 375 [Scalia, dissenting]).




As it turned out, *Grutter* failed to close the book on
university affirmative action. A new legal challenge soon arose, this
time against the University of Texas, which had revised its own
admission program in 2004 to emulate the scheme validated
in *Grutter*. The case, *Fisher v. Texas*, wound its way
through the courts for a decade, twice landing on the steps of the
Supreme Court before final disposition in 2016.



Justice Kennedy, writing for the Court, left the *Grutter*
defense of racial preferences intact, essentially retracing Justice
O'Connor's opinion. Universities bent upon pursuing the
"educational benefits that flow from student body
diversity," he wrote, are due a degree of judicial deference
(*Fisher v. University of Texas*, 133 S. Ct. 2411, 2419
[2013]).



> 
> 
> The University explains that it strives to provide an 'academic
> environment' that offers a 'robust exchange of ideas,
> exposure to differing cultures, preparation for the challenges of an
> increasingly diverse workforce, and acquisition of competencies
> required of future leaders.' ... All of these
> objectives ... mirror the 'compelling interest' this
> Court has approved in its prior cases (*Fisher v. University of
> Texas*, 136 S. Ct. 2198, 2211 [2016]).
> 
> 



Persuaded that race-neutral policies didn't allow the
University fully to succeed in deriving the "educational
benefits" of diversity, the Court majority found the
University's modest use of race permissible. 




But despite these legal victories, have universities actually made a
case for diversity as the justifying basis for race-conscious
admissions? Caught napping in the mid-1990s when the legal
challenges began, higher education rushed to put meat on
the *Bakke* bones and turn Justice Powell's
off-hand remarks into a full-fledged defense. As the
University of Michigan cases approached a final test in 2003, the
Supreme Court was bombarded with scores of
friend-of-the-court briefs from business groups,
military officers, higher education associations, coteries of
scholars, and other interested parties lauding the benefits of
diversity. A similar outpouring preceded the two decisions
in *Fisher v. University of
Texas*.[25]



Consider some of the claims in these briefs. "[S]tudent body
diversity is *essential*" if universities are to provide
students with "skills necessary for...success in an
increasingly globalized world" (Leading Public Research
Universities 2015, 11-12; emphasis added). Racial and ethnic
diversity on campus are *vital* to securing a capable
workforce; it is  *essential* that [students] be educated in an
environment where they are exposed to diverse people, ideas,
perspectives, and interactions (65 Leading American Businesses 2003,
1, 2; emphasis added). Otherwise, the education of students is
"*degraded*" (823 Social Scientists 2015, 5;
emphasis added). "[S]tudents today *must* receive direct
experience with people of different backgrounds" (American
Council on Education 2015, 6; emphasis added). The
"*only* means of obtaining properly qualified employees
is through diversity at institutions of higher
education...[Appropriate] skills can *only* be developed
through exposure to widely diverse people, culture, ideas, and
viewpoints" (Fortune 100 and Other Leading Businesses 2013, 3,
5; emphasis added). "Diversity is an *indispensable*
prerequisite to establishing the most productive problem-solving
groups" (Social and Organizational Psychologists 2015, 47;
emphasis added).




According to the briefs the positive effects of diversity are
bountiful. They include "improvements in cognitive abilities,
analytical problem solving skills and complex thinking
skills...[C]ross racial interactions are more strongly linked
with cognitive growth than are interactions with non-racial
diversity" (American Educational Research Association 2012,
12). "[R]esearch shows that by increasing diversity, universities can
help their graduates enter society with better problem-solving
capabilities than students who are not exposed to diversity" (Social
and Organizational Psychologists 2015, 37). 



Now consider four points. First, the promiscuous use of "diversity" in
the argument for affirmative action opens the door to waffling and
equivocation. Students learn through "exposure to widely diverse
people, culture, ideas, and viewpoints" announces the Fortune 100
brief. Of course. But the issue at hand is *racial*
diversity. Wrapping the latter into the former is not an aid to
precision.[26]
Second, can we imagine that the University of Michigan or the
University of Texas would abandon its affirmative action program if
studies showed no particular educational benefit to diversity? Suppose
it turns out that students in general don't show additional "cognitive
growth" from increased racial diversity. Suppose it turns out students
would best prepare for our "increasingly globalized world" by learning
Mandarin Chinese or Spanish.



Third, the straining by academics to show that cross-racial
interaction
is *essential*, *indispensable*, *vital*, *necessary*,
or *imperative* to a good education, if taken at face value,
leads to an unpleasant conclusion, namely that a lot of black college
students suffer a deficient education. The young woman who excels at
Dunbar High School in Washington, DC (enrollment 95 % black, 1 %
white) and then gets her Bachelor of Science degree in
statistics *magna cum laude* at Spelman College (enrolling, in
2017, one white among its 2097 students) is, according to Fortune 100
companies, not the sort of employee they want. Graduates of Fisk
University (0.7% white) or Tougaloo (0.6% white) or Florida A & M
(3.5% white) haven't achieved enough cognitive growth,
haven't sufficiently honed their problem-solving
skills--is that what we are supposed to conclude? The University
of Texas (enrolling 25% Hispanics and 5% blacks) contends that without
a "critical mass" of minority students it can't reap
"the educational benefits of diversity." Does this mean
that Prairie View University, two hours down the road from Austin and
enrolling 7% Hispanics and 1.8% whites, has to do without those
benefits? Are its students poorly prepared for "our increasingly
diverse workforce and society" (*Fisher* 2016, at 2210,
2211)? Defenders of affirmative action should think twice about
claiming an education in a "non-diverse" setting
must be *degraded*. 



Fourth, there is a noticeable lack of "fit" between university
affirmative action practices and the diversity rationale (see, for
example, Anderson 2002, 27; Anderson 2004, 1217, 1221; Anderson 2010,
142-143). Race is not treated just like any other special factor
that might warrant an admission "plus." Universities work diligently
to maintain a relatively constant percentage of black and Hispanic
enrollees but give variable attention to other of the myriad qualities
students can bring to campus. As one proponent of affirmative action
notes, "affirmative action programs...do not look or operate as
if they were testing for 'diversity'." He suggests that many
supporters of affirmative action nevertheless disregard this fact,
believing "that there is no harm in [a] miscast reliance on diversity
because, with a wink and a nod, everyone understands that diversity is
really a proxy for *integration*" (Issacharoff 2002, 30, 34;
emphasis added). 


## 8. The Integration Argument




Although the University couched its legal defense in terms of the
"educational benefits of diversity," another rationale lay ready at
hand. The main reason the University of Michigan strives for a
reasonable representation of minorities on campus is because of the
way it conceives of its mission: to prepare Michigan's future
leaders.




The argument is straightforward:


1. The leadership of the state ought roughly to represent the state's
population, ethnically and racially.
2. As the state's premier training ground for leadership, the
University ought to graduate rising generations of future leaders that
conform to this representational goal.
3. To graduate such rising generations, it needs to admit racially and
ethnically representative classes.




This is the "Michigan Mandate" (*Gratz
v. Bollinger*, 135 F. Supp. 2d 790 [2001], at 796-797).
Racial and ethnic diversity aren't incidental contributors to a
distinct academic mission; they are *part of* the mission of
the University, just as educating young people from Michigan is part
of it (see Fullinwider and Lichtenberg 2004, 165-188). And
something like a national version of the mandate underlies the
Michigan Law School's affirmative action policy, since its
graduates move into elite law firms or government service outside
Michigan (see Lempert et al. 2000, 399; Wilkins 2000,
530-534).




This "integration" rationale seems better aligned with the
actual practice of university affirmative action than the diversity
rationale. Indeed, in the midst of her nominally Powell-like defense
of the Law School, Justice O'Connor in *Grutter* for a
moment veered away from the "educational benefits of
diversity" to go down a quite different path. Institutions like
the University of Michigan and its Law School, she noted,
"represent the training ground for...our Nation's
leaders." She went on:



> 
> 
> In order to cultivate a set of leaders with legitimacy in the eyes
> of the citizenry, it is necessary that the path to leadership be
> visibly open to talented and qualified individuals of every race and
> ethnicity. All members of our heterogeneous society must have
> confidence in the openness and integrity of the educational
> institutions that provide this training....Access...must be
> inclusive...of every race and ethnicity, so that all members of
> our heterogeneous society may participate in the educational
> institutions that provide the training and education necessary to
> succeed in
>  America (*Grutter*, at 336).
> 
> 




This "legitimacy" argument--not in any way about
enriching the climate of opinion on campus or improving
students' complex thinking skills--parallels the simple
syllogism set out just above. Justice O'Connor inserted this new
rationale into the middle of her *Grutter*
opinion--inserted it unexpectedly and then abandoned it just as
quickly to resume tracing the byways of diversity. Justice Kennedy did
the same in *Fisher* (2016, 2211). 




Certainly, something in the spirit of the "Michigan
Mandate" has animated elite universities, including those
studied by William Bowen and Derek Bok in *The Shape of the River:
Long-Term Consequences of Considering Race in College and University
Admissions*. The primary aim of these institutions is not through
vigorous affirmative action to enhance the liberal learning of their
students (although they welcome this gain for all students). Their
main motive for assuring that the percentage of African-Americans and
Hispanics on their campuses is more than token derives from their
self-conceptions as institutions training individuals who will some
day take up national and international leadership roles in the
professions, arts, sciences, education, politics, and government
(Bowen and Bok 1998, 7). Society, they believe, will be stronger and
more just if the ranks of its leading citizens include a racially and
ethnically broader range of people than it does now. Nor are they
wrong in thinking that the pipeline to local and national elites runs
through top-notch universities.




Elizabeth Anderson, in two long essays (2002, 2004), bookending
the *Grutter* decision, makes a thorough and cogent case for
putting racial integration at the center of conceptions of affirmative
action. The diversity argument is insufficient, she
writes. "Considered as a purely cognitive end, divorced from the
values of democracy and social justice, the 'robust exchange of
ideas' cannot support the scope of racial preferences in college
admissions" (Anderson 2002, 1221). She goes on:



> 
> 
> The integrative model of affirmative action offers an alternative
> rationale for race-sensitive admissions that unites educational
> with democratic and social justice concerns. It begins with a
> recognition that Americans live in a profoundly segregated society, a
> condition inconsistent with a fully democratic society and with equal
> opportunity. To achieve the latter goals, we need to
> desegregate--to integrate, that is--to live together as one
> body of equal citizens (Anderson 2002, 1222).
> 
> 
> 
> 
> 
> The integrative model has several legal advantages over the diversity
> and compensation models of affirmative action. It makes sense of the
> scope and weight that educational institutions actually give to race
> in the admissions process. It thus closes the gap between theory and
> practice that makes affirmative action programs so vulnerable under
> strict scrutiny. It also shows how race can be directly relevant to a
> compelling state interest, rather than merely a proxy for something
> else, such as diversity of opinions (Anderson 2002, 1226).
> 
> 
> 
> 
> 
> Given the realities of race in the U.S., people of different races
> occupy different walks of life. So in the U.S., democracy requires
> racial integration of the main institutions of civil society, the
> places where discussion of public import among citizens take place:
> public accommodations, workplaces, schools, and neighborhoods. The
> same point applies to society's elites, those who play a pivotal
> role in formulating and adopting policies of public import. Elites, to
> be legitimate, must serve a representative function: they must be
> capable of and dedicated to representing the concerns of people from
> all walks of life, so that the policies they forge are responsive to
> these concerns. An elite drawn only from segments of society that live
> in isolation from other segments will be ignorant of the circumstances
> and concerns of those who occupy other walks of life (Anderson 2004,
> 22).
> 
> 
> 
> 



Anderson sees integration as an end courts can accept, one that
informs many past judicial opinions and acts of legislation, and one
given endorsement in *Grutter*:



> 
> The "diversity" defense of affirmative action, articulated
> in Justice Powell's *Bakke* opinion, limits integration
> to those cases in which it can be shown to yield educational
> benefits. *Grutter* advances a more robust integrationist
> perspective, which affirms racial integration as a compelling interest
> apart rom its educational benefits (Anderson 2004, 23).
> 



(It is hard to see how *Grutter* represents a
"robust" defense of integrative affirmative
action. Justice O'Connor introduced the "legitimacy"
argument without prior preparation and left it hanging without further
development. Justice Kennedy in *Fisher* likewise seemed not to
notice that the "legitimacy" argument departs considerably
from the diversity rationale he was rehearsing. Nevertheless, there it
is in the majority opinions, to be seized on and developed by a future
court if it is so disposed.)[27] 


 
Other writers, too, have talked about affirmative action in terms
of integration (Warnke 1998; Estlund 2002; Jacobs 2004; Boddie
2016). 




The integration argument, like the diversity argument, is
straightforwardly instrumental. It points to hoped-for outcomes of
affirmative action. If those outcomes don't materialize, then
affirmative action's cause is weakened. Moreover, the little
integration syllogism isn't complete as it stands. It needs to include
another premise: that the gains from achieving racially and ethnically
integrated classes don't come at a disproportionate cost.




Perhaps the cost is high, or even too high. Stephan and Abigail
Thernstrom certainly think so. They contend that most of the cost
falls on the very persons affirmative action is supposed to benefit.
Under-prepared African-Americans are thrown into academic environments
where they cannot succeed (Thernstrom and Thernstrom 1997, 395-411).
In the Thernstroms' view, race-blind admissions policies will result
in a desirable "cascading," with African-American and
Hispanic students ending up at colleges and universities where the
academic credentials of their fellow students match their
own. However, the Bowen and Bok study provides some evidence that
cascading isn't necessarily a valuable phenomenon. In fact, at the
schools they studied, the better the institution a student entered,
whatever his academic credentials, the more likely he was to graduate,
go on to further education, and earn a good
income (Bowen and Bok 1998, 63, 114,
 144).




Even so, the select schools Bowen and Bok studied may be quite
unrepresentative of the full range of schools that
resort to racial preferences and the cost-benefit picture that holds
for these schools may not hold for the rest. Indeed, the picture drawn
by Richard Sander in a lengthy review of affirmative action in law
schools, published in the November 2004 *Stanford Law Review*,
lends credence to the Thernstrom's academic mismatch thesis. Ranking
law schools from best to worst, Sander found that affirmative action
boosts African-American students 20 or more steps up the ladder,
putting them in schools with white classmates who possess considerably
better LSAT scores and undergraduate college grades. The upshot:
"close to half of black students end up in the bottom tenth of
their classes." This bad performance yields three bad
consequences. First, African-American students suffer high attrition
rates. Second, they fail the bar exam at a high rate (the principal
predictor of a student's passing or failing is her grades, not the
quality of her school). Third, they suffer a significant employment
penalty for low grades "in all schools outside the top
ten." Sander estimates that under a race-blind admissions
system, American law schools would actually create more
African-American lawyers than they do under affirmative action (Sander
2004, 449, 460, 478, 479).




Sander's article inspired a flurry of responses disputing his
methodology and conclusions (e.g., Ayers and Brooks 2005, Chambers,
*et al*. 2005, Wilkins 2005, Ho 2005, Barnes 2007, and
Rothstein and Yoon 2008). Sander replied to his critics (Sander
2005); other writers found evidence of mismatch effects in educational
domains outside law schools (Elliott *et al*. 1996, Smith and
McArdle, 2004, Arcidiacono *et al*. 2012); yet other scholars
presented independent confirmation of Sander's hypothesis
(Arcidiacono *et al*. 2011b, Williams 2013), One critic, upon
re-analysis, had to withdraw her refutation of Sander (Barnes 2007,
Barnes 2011); and in 2012 Sander joined with co-author Stuart Taylor
to publish *Mismatch*, a book-length treatment setting out old
and new research supporting Sander's hypothesis. Others continue
to find the law school mismatch hypothesis dubious and unsupported
(Camilli and Welner 2011; Camilli and Jackson 2011; Kidder and Lempert
2015) 



Other researchers, following the lead of Bowen and Bok, have focused
on undergraduate performance. Fischer and Massey, for example,
concluded that though affirmative action has "both positive and
negative implications for minority students, [such policies] operate,
on balance, to enhance the academic achievement of minority
students" (Fischer and Massey 2007, 546). In another study,
Massey and Mooney found "little support for the mismatch
hypothesis" (Massey and Mooney 2007, 114). Dale and Krueger
determined that "the effect of attending a school with a higher
average SAT score is positive for black and Hispanic students"
(Dale and Krueger 2014, 350). Similarly, Melguizo held: 



> 
> that for minority students who were admitted to...selective
> institutions under affirmative action (i.e., with slightly
> below-average SAT scores but with other personal characteristics
> and experiences correlated with persistence), their probability of
> graduation was not lower as was predicted by critics of affirmative
> action. On the contrary, their probability of graduation was higher at
> the most and very selective institutions compared to the
> non-selective ones (Melguizo 2008, 233).
> 
> 




One reason disputes persist about cause and effect is imperfect
data. Although often operating with large sets of information,
researchers must decide which statistical models most appropriately
tease out significance, decisions that involve debatable assumptions
about filling in missing pieces. Two researchers note that
"[b]etter data would undoubtedly permit more relevant and
convincing analyses of the effects of mismatch and and would
especially help to identify any threshold below which potential
mismatch effects become more probable" (Camilli and Welner 2011,
500). Much of the back-and-forth about the effects of
affirmative action could be resolved if educational institutions
disclosed information about their admissions processes, student
grades, graduation rates, and the like. But institutional resistance
makes this unlikely.[28] 


## 9. Desert Confounded, Desert Misapplied




The affirmative action debate throws up many ironies but one in
particular should be noted. From the time in 1973 when Judith Jarvis
Thomson conjectured that it was "not entirely
inappropriate" that white males bear the costs of the
community's "making amends" to African-Americans and women
through preferential affirmative action, the affirmative action debate
has been distracted by intense quarrels over *who deserves
what*. Do the beneficiaries of affirmative action *deserve*
their benefits (Allen 2011)? Do the losers *deserve* their loss?




Christopher Edley, the White House assistant put in charge of
President Clinton's review of affirmative action policy in 1994-95,
speaks of how, during the long sessions he and his co-workers put in
around the conference table, the discussion of affirmative action kept
circling back to the "coal miner's son" 
 question (I've changed the gender for expository purposes).



> 
> 
> Imagine a college admissions committee trying to decide between the
> white [son] of an Appalachian coal miner's family and the African
> American son of a successful Pittsburgh neurosurgeon. Why should the
> black applicant get preference over the white
> applicant? (Edley 1996, 132ff)
> 
> 




Why, indeed? This is a hard question if one defends affirmative action
in terms of compensatory or distributive justice. If directly doing
justice is what affirmative action is about, then its mechanisms must
be adjusted as best they can to reward individual desert and true
merit. The "coal miner's son" example is meant to throw
desert in the defender's face: *here* is affirmative action at
work *thwarting* desert, for surely the coal miner's son--from the
hard scrabble of Harlan County, say--has lived with far less
advantage than the neurosurgeon's son who, we may suppose, has reaped
all the advantages of his father's (or mother's) standing. Why should
the latter get a preference?




A defender might answer in the way that Charles Lawrence and Mari
Matsuda do in their 1997 book, *We Won't Go Back*:
"All the talk about class, the endless citings of the
'poor white male from Appalachia,' cannot avoid the
reality of race and gender privilege" (Lawrence and Matsuda
1997, 190-191). As they see it, because white privilege persists
racial preferences really do balance the scales. Because male
privilege persists, gender preferences really do make selections
fairer. Lawrence and Matsuda brook no concession: in every case the
loser in affirmative action is *not* the more deserving.




Even Justice Brennan tried his hand at this argument, writing in
*Bakke*:



> 
> 
> If it was reasonable to conclude--as we hold that it
> was--that the failure of minorities to qualify for admission at
> [the University of California at] Davis [Medical School] under regular
> procedures was due principally to the effects of past discrimination,
> then there is a reasonable likelihood that, but for pervasive racial
> discrimination...[Bakke] would have failed to qualify for
> admission even in the absence of Davis' special admissions
>  program (Bakke, at 365-6 [Brennen, dissenting]).
> 
> 




Bakke was not denied anything to which he had moral claim in the
first place.





Just as Mary Anne Warren and James Rachels in the 1970s thought that
the losers under affirmative action were losing only illicit
privileges, and the gainers merely gaining what should have been theirs
to start with, so Michel Rosenfeld in the 1990s, in his extended
"dialogic" defense of affirmative action, echoes the same
thought:



> 
> 
> Although affirmative action treats innocent white males unequally, it
> need not deprive them of any genuine equal opportunity rights.
> *Provided an affirmative action plan is precisely tailored to
> redress the losses in prospects of success [by African-Americans and
> women] attributable to racism and sexism, it only deprives innocent
> white males of the corresponding undeserved increases in their
> prospects of success*.... [R]emedial affirmative action does
> not take away from innocent white males anything that they have
> rightfully earned or that they should be entitled to
>  keep (Rosenfeld 1991, 307-8, emphasis added).
> 
> 




However, programs that give blanket preferences by race or gender are
hardly "precisely tailored" to match desert and reward
since, as Lawrence and Matsuda themselves acknowledge at one place,
the white male "privilege" is "statistical"
(Lawrence and Matsuda 1997, 252). Yet it is individuals, not
statistical averages, who gain or lose in admissions determinations
and employment selections.[29] 




The persistence of this strategy of defense reflects a residual
feeling that the fruits of affirmative action are somehow spoiled if they are
not deserved (Harris 2003). Nevertheless, it is the wrong strategy for defending
real world affirmative action. The programs legitimated under the
Civil Rights Act, in both their nonpreferential and preferential
forms, had--and have--a clear aim: to change institutions so
that they can meet the nondiscrimination mandate of the Act. Selection
by race or gender was--and is--a means to such change. To
the extent that such selection also compensates individuals for past
wrongs or puts people in places they really deserve, these are
incidental by-products of a process aimed at something else.




The same is true with university admissions policy. When the Medical
School of the University of California at Davis offered four reasons
in defense of the special admissions program that left Bakke on the
outside, none of these reasons said anything about matching admissions
and desert. The criteria of the special admissions program--race
and ethnicity--were instruments to further ends: integrating the
classroom, the profession, and the delivery of medical services, and
breaking the chain of self-reproducing societal discrimination.
Likewise, when the University of Michigan and the University of Texas
defended their programs they pointed not to desert rewarded but
educational value generated.




Now, if the neurosurgeon's son *because of his race* can
advance each of these goals and the coal miner's son, *because of
his race*, cannot, then isn't the selection decision easy? Pick
the *African-American* neurosurgeon's son (however advantaged
he may be) over the
*white* coal miner's son (even if he is the
most deserving creature imaginable). The aims of real world
affirmative action make race and ethnicity (and sometimes gender)
salient, not personal desert or merit. The test of real world
affirmative action lies in the urgency of its ends (preventing
discrimination, promoting diversity or integration) and the aptness
(moral and causal) of its means (racial, ethnic, and gender
preferences). Both remain much in dispute.