Saving Affirmative Action

And a Process for Elites to Choose Elites

At first blush there seems nothing wrong with relying on elected officials to be knowledgeable about the voting patterns of residents in their districts. After all, politicians are motivated to remain in office, and to do so they need the support of at least some of their constituents. But whether that support is a fair measure of the voters' freely given choice—or if the voters have even been given a choice—is a question the court considers scarcely worth asking. To ask that question would mean coming to terms with the fact that control of the redistricting process rests in the hands of politicians. They narrowly tailor the voters' choices based on the combination of voters most likely to re-elect friends or unseat foes. It is most often the incumbent politicians, not the voters, who choose the representatives.

Justice Thomas joins O'Connor's opinion in the Georgia redistricting case. He dissents from her opinion in the Michigan Law School case. Buried in his dissent is an insight that captures much about both cases. Thomas asks who gets to choose and for whose benefit they are making these choices.

Trusted decision makers are now freer to make choices without a great deal of transparency. In the Georgia case, under the Voting Rights Act, blacks can be "virtually" represented—by the presence of Democrats in the state legislature as a whole. Black voters may have more overall influence on the legislative process if sympathetic legislators—chosen by others—seem to represent their interests. Similarly, in the Michigan cases, under the Fourteenth Amendment, the court defers to trusted educational decision makers to choose which blacks are most qualified to serve the institution's compelling interest in diversity.


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The court can distinguish good choices from bad ones in both the voting case and the higher-education admissions cases because, as O'Connor writes in an earlier decision, sometimes "appearances do matter." In his opinion in the Michigan case, Thomas calls this "racial aesthetics" driven by "a faddish slogan of the cognoscenti." While his rhetoric is harsh, he is onto something. By their presence, people of color legitimate our institutions. And sometimes, as in Georgia, they need not even be physically present, as long as people with sympathetic sentiments are there to represent them. It is the state's "political choice," O'Connor writes, whether "substantive or descriptive representation is preferable." There is little about accountability to the voters or the public in either the voting-rights or the affirmative action opinions.

As long as the process of decision making by elites remains opaque, whether in district designation or university admissions, race becomes the lens through which voters or disgruntled white applicants understand it. Race is the neon light, the one variable that remains highly visible. If admissions decisions, like redistricting decisions, are to be made in a more democratic fashion—that is, with transparency and accountability to the institution's public mission and to the taxpayers who subsidize it—then much more than the physical aesthetics need be obvious. As both justices Ginsburg and Souter conclude, in explaining why they, unlike the court majority, supported both the Michigan Law School's individualized assessment and the undergraduate point system, "If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises."

The worry is that as long as colleges and universities obscure the criteria on which they admit students, the elite are free to choose themselves and then legitimate those choices with a critical mass of people of color. If that is the case, working-class whites and poor people generally will continue to be underrepresented in these institutions. This is not the fault of affirmative action. It is the fundamental flaw in the admissions process, and it occurs at the settled core of decision making, not along the margins.

As college is an increasingly scarce and expensive resource, access to selective institutions is also highly competitive. And this scarce resource—for now, at least—is overwhelmingly given to those with money and privilege. A recent study by ETS's Carnevale and Stephen Rose found that 74 percent of the students at the 146 most selective colleges and universities come from the upper 25 percent of the socioeconomic status indicators. Only 3 percent come from the bottom 25 percent, and a total of 10 percent come from the bottom half. This study demonstrates that it is the testocracy, and not affirmative action, that excludes poor and working-class whites. The so-called hard variables allow the elite to monopolize the admissions process based on indicia of merit that are weak predictors of academic success and sometimes correlate negatively with likelihood to contribute to the community.

Given these self-replicating tendencies in both the academy and the legislature, the court's credulous deference to elites to choose who is admitted or who can be elected should give us pause. For this reason, Thomas's aim is off the mark: This is not about diversity as aesthetics but diversity as a fig leaf to camouflage privilege.

In both a state legislature and a law school classroom, the Supreme Court tells us in flowing prose that racial diversity is a compelling governmental interest. Considerations of race are currently needed, as the Georgia ruling states, "to foster our transformation to a society that is no longer fixated on race." The Voting Rights Act, in the Georgia case, like the Equal Protection Clause in the Michigan cases, "should encourage the transition to a society where race no longer matters." This is a society in which "integration and color blindness are not just qualities to be proud of but are simple facts of life."

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