Saving Affirmative Action

And a Process for Elites to Choose Elites

In 1929, my father was admitted to Harvard College. Proud but poor, he showed up to apply for financial aid. He was told he was ineligible because he had failed to submit a photograph with his original application. After all, the school had already admitted one black student. Harvard College had a quota for blacks, a quota of one. Many schools had similar quotas to keep out Jews as well.

Quotas are arbitrary ceilings or rigid and fixed numerical floors. Quotas are typically used to exclude people because they belong to a stigmatized racial or ethnic group. Quotas are presumably offensive not only because they are exclusionary but because they treat people as members of a low-status and unwanted group, and not as individuals.

In her majority opinion in Barbara Grutter v. Lee Bollinger, et al. (the University of Michigan Law School affirmative action case), Justice Sandra Day O'Connor takes pains to distinguish between a commitment to diversity as a compelling governmental interest and the unconstitutional use of quotas. Only justices Clarence Thomas and Antonin Scalia attack the idea of diversity itself, leading some legal scholars to go so far as to characterize this as a "7-2" victory for diversity. Whatever the count, the court has enough hammers to nail shut the coffin on the rhetorical assaults from the right that seek to equate race with quotas: Not every consideration of race impermissibly excludes; race can be a relevant factor without becoming an illegal quota. Presumably, my father would now would be constitutionally eligible for financial aid.


The Supreme Court's Big Week

Sanford Levinson on the Conservative Court's Liberal Decisions

Laura Conaway on Same-Sex Marriage

Richard Goldstein on the Sodomy Ruling. Plus: Attention, Sodomites!

Lani Guinier on Affirmative Action

There is much to celebrate about the affirmative action decisions upholding the principle that diversity is a compelling governmental interest. But after pairing them with the ruling three days later in the Georgia voting rights case, also authored by O'Connor, one cannot avoid seeing a parallel structure of elitism in the justifications for both opinions.

In the Michigan Law School affirmative action case, O'Connor applauds a holistic and individualized assessment where admissions officers and law school deans, in whom she places great faith, count race as one of many relevant factors as they select a law school class. She writes, "the path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity." She expects, rather quixotically, that 25 years from now, that path to leadership will no longer be blocked.

But certainly for the time being, considerations of race are essential in shaping the next generation of leaders. Political science, sociology, and criminal justice researchers find that race correlates strongly with wealth, political viewpoints, ability to get a mortgage, employment opportunities, and police stops on the New Jersey Turnpike. A recent M.I.T./University of Chicago study, for example, found that identical résumés with white-sounding names such as Bill or Sue were 50 percent more likely to generate interview invitations than résumés with black-sounding names like Tyrone and Tamika. This was true whether the application was for a position as a clerk or as a manager. Other studies show that even with comparable incomes, middle-income whites have net financial assets nearly 55 times greater than those of their black counterparts.

Because race has political, economic, and social components, the court finds that diversity benefits white and nonwhite students alike. Access to classrooms and faculties for a critical mass of students of color promotes learning outcomes for everyone, as students expand their intellectual horizons and improve their capacity to participate in our multiracial democracy.

Moreover, the law school policy, which the court upholds, acknowledges that the numbers we often associate with merit, such as LSAT scores, are imperfect predictors of academic success in law school. As a result, according to the O'Connor opinion, admissions officials look beyond grades and test scores to other criteria that are important to the school's educational objectives. The so-called soft variables help admissions officers evaluate an "applicant's likely contributions to the intellectual and social life of the institution," she writes. While O'Connor does not cite it in her opinion, the case record also contains evidence that these soft variables may be even better in assessing an applicant's likely contributions to the larger society once he or she graduates.

O'Connor offers a view of merit that encompasses a more robust understanding of what it means to be qualified. This is good, not only for blacks and Latinos but for poor and working-class whites. Excessive reliance on the hard variables, which correlate with parental affluence more than academic performance, skews the distribution of scarce slots in prestigious universities toward those with money. As Tony Carnevale, vice president of the Educational Testing Service (ETS), says, higher education, especially at public institutions that rely heavily on taxpayer dollars, has become "a gift the poor give to the rich." A more dynamic view of merit is therefore welcome news for those of us committed to teaching in institutions that look like America and that graduate students committed to making America better.

The question in a democracy, however, is who should decide who gets to walk the path of leadership? O'Connor answers in a way that is disturbing both in the affirmative action decision and in her opinion in Georgia v. Ashcroft, the Georgia redistricting case that the Supreme court handed down on June 26. The issue raised by the case was: Should the voters get to choose whether they want to be represented by someone directly accountable to them or someone who is mildly sympathetic but chosen primarily by others? O'Connor is confident that the judgment of state legislators can be trusted in this matter. The representatives, she writes, "have some knowledge about how voters will probably act," and can be relied on to determine whether "minority voters' effective exercise of the electoral franchise" will be adversely affected.

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