Discussed In This Essay
In 1996 California became the first state to ban preferential admissions, hiring, and contracting policies intended to bolster the prospects of groups that are underrepresented or the victims of discrimination. Since the 1960s the shorthand for such policies has been “affirmative action.” Voters passed Proposition 209, which amended the California constitution to stipulate that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting” (emphasis added).
Prop. 209 prevailed by a margin of 54.6% to 45.4% on the same Election Day that saw Bill Clinton win a second presidential term. In 1996, California was a purple state turning blue: Clinton received 51.1% of its votes that year, slightly better than the 49% he got in the rest of the country. Not coincidentally, it was also a white-ish state turning brown, on its way to becoming “majority-minority.” According to a Los Angeles Times exit poll, 74% of the 1996 California general election ballots were cast by whites, 10% by Latinos, 7% by blacks, and 5% by Asians.
The demographic distribution of the vote is pertinent, given that 209’s opponents portrayed it as a sinister measure to reverse California’s progress toward racial concord and fairness. Proposition 209 “Harms Equal Opportunity for Women and Minorities,” according to the title of its opponents’ official argument, provided to all voters as part of the ballot initiative process. Rosa Parks was one of that argument’s signatories, and it included a statement from Colin Powell, then at the height of his prestige. Prop. 209, he said, “puts at risk every outreach program” and “puts the brakes on expanding opportunity for people in need.”
Although California’s white voters could, in theory, have enacted 209 without a single vote from any other group, the Times exit poll showed that the proposition’s winning coalition was more…well, inclusive. Its finding that 63% of whites voted in favor of 209 means that of the 54.6% of the total vote it received, 46.6 percentage points came from white voters and the other eight percentage points from non-whites. The Times poll also showed that 39% of Asian voters supported 209, as did 26% of blacks and 24% of Hispanics. All told, then, some 31% of non-white voters supported Proposition 209, which means that the idea of banning race preferences was twice as popular with whites as non-whites.
Twenty-four years later, California voters once again passed judgment on affirmative action. This time the ballot number was Proposition 16. The question it posed in November 2020 was whether to repeal Proposition 209. The ballot title for 16 was, “Allow Diversity as a Factor in Public Education, Employment, and Contracting Decisions.” “White men are still overrepresented in positions of wealth and power,” the official argument in favor of the proposition read, even though California was America’s “most diverse state.” Therefore, “By voting YES on Prop. 16, Californians can take action to push back against racism and sexism and create a more just and fair state for all.”
Prop. 16 was submitted to voters by a Democratic legislature confident that the “racial reckoning” many were calling for following George Floyd’s death in Minneapolis that summer had made Prop. 209 vulnerable. Moreover, nearly every newspaper in the state endorsed it, many with impassioned editorials. The Times urged voting yes on 16 to help “dismantle the racism baked into our institutions.” Its supporters contributed $25.7 million for the campaign, while 16’s opponents raised less than $1.8 million. And by 2020 California had become one of the most Democratic states in America. Joe Biden received 63.5% of its votes, better than he did in all but four other states and the District of Columbia, and 13.7 percentage points more than the 49.8% of the vote he won in the nation outside the Golden State.
Above all, demographic changes were widely expected to put Prop. 16 over the top. According to CNN’s exit poll, white voters accounted for 49% of California’s 2020 electorate, a third less than in 1996. Black voters accounted for 9%, Asians 6%, and “other” voters 5%. Hispanics were 31% of the state electorate, three times greater than in 1996. If all these groups voted for 16 by the same proportions in which they had voted against 209—37% among whites and 69% among non-whites—the repeal would have won with 53% of the vote.
In fact, however, California rejected affirmative action more emphatically in 2020 than it had in 1996. The final count was 57.2% against Prop. 16 and 42.8% in favor. How did this happen? Some disconsolate Prop. 16 supporters contended that many voters favorably disposed to reinstating affirmative action found the proposition’s ballot language confusing, and ended up voting against affirmative action when they meant to vote for it. But there’s no reason to believe, or evidence to suggest, that confused voters were all confused in the same direction. It is a virtual certainty that, in the nation’s largest state, some number of people favorably disposed to affirmative action ended up voting against 16, even as some people skeptical about affirmative action voted for the ballot proposition. Nor is there any basis to contend that the net loss resulting from voter confusion amounted to one out of every eight votes against Prop. 16, which is what its victory would have required. In any case, a post-election survey by Strategies 360 found that giving respondents a thorough explanation of what Proposition 16 would have done, and why its proponents felt it necessary, made no discernible difference to the number of people who favored and opposed it.
Another possibility, that white voters were a smaller portion of the electorate than in 1996 but had grown overwhelmingly opposed to affirmative action, doesn’t hold up either. California was, after all, a state where white voters favored (by an estimated 51% to 47%) Biden over Trump, something that was not true in most other states, including some Biden carried only because of strong support from non-white voters, such as Arizona, Georgia, Pennsylvania, and Wisconsin. And although no published exit poll drilled down on the question of which Californians voted for and against Prop. 16, a Public Policy Institute of California (PPIC) poll taken in October 2020 came very close to calling the result in advance. It found that, among likely voters, 50% opposed Prop. 16, 37% favored it, and 12% were undecided. If 50 of every 87 undecided voters ended up voting against 16, it would have received 56.9% of the vote, three tenths of a percent less than the final total of 57.2%.
Allocating undecided voters in the same way indicates that affirmative action was, if anything, a bit more popular with whites in 2020 than it had been in 1996: about 61% voted against Prop. 16 compared to 63% who had voted in favor of Prop. 209. (The October 2020 PPIC poll found that, among likely voters, whites were opposed to Prop. 16 by 53% to 34%, with 13% undecided.) So, unless every poll taken before and after the election missed an unprecedented anti-affirmative action landslide among white California voters, the only remaining explanation is that Prop. 16 lost because of non-white voters. A slight majority, around 53%, appears to have voted against it, compared to the minority of less than one third who voted for Prop. 209 in 1996. In other words, affirmative action was nearly as unpopular with non-white California voters in 2020 as it had been with all California voters in 1996.
To assess this counterintuitive development and its political implications outside California and beyond affirmative action, we need to ask two related questions. First, what are the elements of a majority coalition that will support or at least tolerate affirmative action and, ultimately, even more ambitious policies like reparations? What political affinities can bring and hold such a coalition together?
This leads to the second question: what are the practical and moral arguments about compensatory or restorative justice that recommend affirmative action and more sweeping initiatives? In particular, how do they allay misgivings about the justification for affirmative action Supreme Court Justice Harry Blackmun acknowledged in Regents of the University of California v. Bakke (1978), misgivings which large numbers of people apparently still harbor? “In order to get beyond racism, we must first take account of race,” Blackmun wrote in defense of a medical school’s policy that set aside 16 of its 100 admissions slots for non-white applicants. “And in order to treat some persons equally, we must treat them differently.” There is, he concluded, “no other way.” But a majority of California voters, in 1996 and again in 2020, appear to believe that affirmative action is neither the only nor the best way, an assessment shared by majorities in Washington, Michigan, Nebraska, Arizona, and Oklahoma—every state but one (Colorado) where the question has been put to a popular vote.
The Coalition of the Ascendant
The first thing to be said about the Democratic Party’s efforts to secure electoral support for affirmative action, and redistributive social justice measures in general, is that Democrats have been confident for 20 years that this problem was solving itself. The Emerging Democratic Majority (2002) by John Judis and Ruy Teixeira told Democrats the best possible news: just by waiting as America’s demographic ratios shifted, Democrats were sure to inherit majority support for their candidates and agenda without ever needing to make difficult choices or disagreeable compromises.
Astute observers interpreted Barack Obama’s election in 2008 as both a vindication of this thesis and the beginning of a long era of Democratic hegemony. Journalist Ronald Brownstein said that Obama secured his “commanding” victory “by tapping into growing elements of American society: young people, Hispanics and other minorities, and white upper-middle-class professionals,” combined with “unprecedented margins among African-Americans.” In Brownstein’s shorthand, this was the “coalition of the ascendant.” Or, as the New Democrat Network founder Simon Rosenberg said, Democrats are “surging with all the ascending and growing parts of the electorate.”
From the perspective of 2022, however, there are increasing doubts that the coalition of the ascendant can be made to coalesce or is destined to ascend. Most importantly, there’s evidence that Hispanic voters are shifting right. A Wall Street Journal poll in December 2021 found that this segment of the electorate—13% of all 2020 voters and rising, already more in some battleground states—is now evenly divided between the two parties. Democratic presidential and congressional candidates got more than 60% of the Hispanic vote in 2020 but, the Journal found, would struggle to get a bare majority today. Sixty percent or more of the Hispanic vote is not only Democrats’ historical norm, but an assumption crucial to every strategy they have about winning electoral majorities. New York magazine’s Eric Levitz says that an equally divided Hispanic voting bloc would put Republicans “in position to dominate American politics for the foreseeable future.” Or, as Jack Herrera wrote in Texas Monthly, a descent to parity among these voters would be an “extinction-level event” for the Democratic Party.
The problem, in Levitz’s unhappy but candid assessment, is that large numbers of Hispanic voters, even ones who consider themselves Democrats, “are quite ideologically conservative.” Many, of course, are pro-life Catholics, indifferent if not hostile to the Democratic agenda on social issues. Levitz also cites studies showing that Hispanics favor more vigorous border security, lower immigration—illegal and legal—and fear that under socialism or social democracy, “people will become lazy/dependent on government.” Ruy Teixeira, increasingly distressed at the triumphal complacency many Democrats took away from reading his book of 20 years ago, offers the same assessment and warning. Hispanics “are heavily oriented toward upward mobility,” he says, and do not “harbor particularly radical views on the nature of American society and its supposed intrinsic racism and white supremacy.”
It should not surprise us that voters committed to working hard and playing by the rules are dubious about allocating opportunities based on demographic happenstance and historical grievance. Teixeira cites a study by the Democracy Fund’s Voter Study Group showing that Hispanic Democrats are significantly less sympathetic to central tenets of racial liberalism than either black or white Democrats. Among Democrats in 2020, for example, 77% of whites and 72% of blacks rejected the proposition that black people could be just as well off as white people if they “would only try harder.” Only 54% of Hispanic Democrats disagreed with that contention. Similarly, 68% of black Democrats and 67% of whites disagreed with the statement, “Other minorities overcame prejudice. Black people should do the same without any special favors.” Forty-eight percent of Hispanics objected to it. There’s every reason to think that including Hispanic Republicans and independents would significantly lower the percentages rejecting these claims…and lower the support for affirmative action.
Meritocracy and Asian-Americans
The Asian-American voting bloc is smaller—4% of the 2020 electorate according to the exit polls—and recently disposed, like Hispanics, to cast 60% or more of its ballots for Democrats. As with Hispanic voters, however, Asian voters gave a larger portion of their votes to Donald Trump in 2020 than in 2016: 7 percentage points more, according to the Washington Post. (Trump’s share of the Hispanic vote increased by 4%.)
Asians’ strongest connection to the issue of affirmative action, and distributive justice in general, lies in their conspicuous success under the prevailing meritocracy. Census Bureau data shows that in 2017, median household income for Asians was $81,331, compared to $68,145 for non-Hispanic whites, $50,486 for Hispanics, and $40,258 for blacks. It’s doubtful that Asians have gamed the system—of admission to selective colleges, for example—since they had so little role in devising it. The Pew Research Center found that, as of 2016, 78% of Asian-American adults were foreign-born, compared to 47% of Hispanics, 12% of blacks, and 5% of whites. They arrived too recently, in other words, to have been able to shape for their own benefit measures like scholastic aptitude tests, where they have had significantly higher scores than every other demographic cohort since the late 20th century. Asians go on to lead all other groups in completing high school and earning bachelor’s and advanced degrees.
Having also worked hard and played by the rules, with great success, Asians have an obvious reason to oppose affirmative action policies that change or simply waive the rules in ways that will penalize them and benefit others. Asians were, for example, instrumental in defeating New York Mayor Bill DeBlasio’s plan to do away with a standardized test as the sole criterion for admission to the city’s most academically demanding high schools. Under the test system, blacks and Hispanics are underrepresented in such schools as Stuyvesant High and Bronx Science while Asian students are overrepresented by a factor of four.
Asians’ success in gaining admission to selective colleges also means that the biggest consequence of affirmative action policies is to reduce the number of Asians at these schools. A lawsuit by Students for Fair Admissions (SFFA) against Harvard University has examined data, turned over in pre-trial discovery, on the institution’s practices and concluded that Asian applicants are evaluated more stringently than all others. Using Harvard’s “academic index,” a metric combining standardized test scores and high school grades, SFFA determined that 12.7% of Asian applicants in the top 10% of the index (the tenth “decile”) were admitted, compared to 15.3% of whites in that decile, 31.3% of Hispanics, and 56.1% of blacks. Indeed, black applicants below the median, with index scores in the fourth and fifth deciles, were more likely (12.8% and 22.4%, respectively) to get into Harvard than Asians in the tenth decile.
The dean of admissions at the other famous university in Cambridge, the Massachusetts Institute of Technology, put the attitude behind Harvard’s numbers into words by describing a Korean-American applicant to his school as “yet another textureless math grind.” In the New York Times, essayist Wesley Yang, author of The Souls of Yellow Folk (2018), wrote that Asian-Americans, “the highest achieving group of students in America,” have been “systematically denigrated” by Harvard, rendering them “collateral damage in the university’s quest to sustain its paradoxical mission to grow its $37 billion endowment and remain the world’s most exclusive institution—all while incessantly preaching egalitarian doctrines.”
Given that Asians account for 9.3% of students enrolled in California public elementary and secondary schools, but 33.5% of students at the University of California, it’s not surprising that many Asian voters saw Proposition 16 as a threat, a measure that would allow Berkeley and UCLA to emulate Harvard and MIT’s admissions practices. Ling Kong, a Silicon Valley engineer, explained to the Los Angeles Times that her ethnic Chinese family had been disadvantaged in Malaysia, where she grew up, because of preferential policies to help indigenous groups. It was the main reason she came to the United States to study. Having emigrated, “I don’t want my kids to be treated differently on the basis of race.”
Bearing Witness to Whiteness
The coalition of the ascendant was supposed to be held together by grievances and perspectives that united “people of color,” both with one another and with their earnest allies among people of pallor. The rebuke employed to get apostates like Ms. Kong back in line is to admonish them against being “white-adjacent.” Interviewed in Slate, diversity consultant Robin DiAngelo, author of White Fragility (2018), allowed that the white-adjacent are “still going to experience racism, but there are going to be some benefits due to your perceived proximity to whiteness.” The question for this century’s antiracist movement, as it was for the last century’s labor movement, is “Which Side Are You On?” White-adjacent groups, DiAngelo continued, “have to ask themselves a really hard question, which is ‘Who have I aligned with? Have I aligned with whiteness, or have I taken up and aligned with black people in this struggle against racism?’”
No one, for example, will accuse Jennifer Ho of being white-adjacent. A professor of Asian American studies at the University of Colorado, she argued last year on the website the Conversation that when black Americans murder Asian Americans it is the fault of white supremacy. Indeed, the root of all interracial violence in America is white supremacy, a belief system in which “to be white is to be human and invested with inalienable universal rights” while “to be not-white means you are less than human—a disposable object for others to abuse and misuse.” Black assailants who randomly attack Asian pedestrians are acting because of the sinister, irresistible force of this pervasive ideology.
In antiracist thought, aligning with whiteness is far worse than choosing sides between ethnicities. It really means choosing depravity over innocence. The belief that whiteness is “a toggle between nothingness and awfulness,” as Princeton historian Nell Irvin Painter describes it, rests on the remarkable thesis that European colonialism and chattel slavery in the Western Hemisphere were horrific, but also outliers. Leave them aside, and our species’ story is otherwise a long, inspiring account of people getting along rather amiably.
Brittney Cooper, a Rutgers University professor of gender and Africana studies, unpacked these concepts last year in an interview for the Root Institute with journalist Michael Harriot. She explained that whites hoard rather than share power out of fear that non-whites will exploit and abuse whites just as whites exploited and abused other peoples. White people, Cooper says, “fear that there is no other way to be human than the way in which they are human.” This belief ascribes to humans generally pathologies that are specific to the fall from grace committed by people of European ancestry. In reality, says Cooper, systematic plunder and cruelty are not rooted in human nature and history but simply “what white humans did.”
White human beings thought there’s a world here and we own it. Prior to them, black and brown people had been sailing across oceans, interacting with each other for centuries without total subjugation, domination, and colonialism.
There is no place in Cooper’s anthropology for the Aztec and Mayans’ human sacrifice rituals, atrocities committed by Japanese troops occupying China, brutal violence between Muslims and Hindus on the Indian subcontinent, or the Rwandan genocide. One either disregards these outrages or enlists a scholar-propagandist like Jennifer Ho to explain that whiteness is their ultimate cause. Even Ta-Nehisi Coates takes a perfunctory moment in Between the World and Me (2015) to acknowledge that “violent exploitation” is an attribute of tribes and nations throughout history, before he hastens back to his preferred topic, the singular odiousness of America’s misdeeds.
Cooper and Harriot are equally selective and obtuse in treating as axiomatic the claim that U.S. prosperity rests entirely on the institution of slavery. To raise only the most obvious objection, over a 200-year period some 400,000 enslaved Africans were carried across the Atlantic to the British colonies that later became the United States. Ten to 12 times as many were taken to Portuguese America, later Brazil, over 350 years. Brazil did not abolish slavery until 1888. If slavery is the crucial variable in the New World prosperity equation, Brazil should be much wealthier than the United States. In fact, its per capita GDP is one fourth of America’s.
Cooper is, nevertheless, cautiously optimistic about humanity’s future. Black people, she says, have seen what “this iteration of treatment of other human beings means.” Her hope and expectation is that as humanity repudiates and recovers from whiteness, people of color will acquire the power denied them for so many centuries and wield it in the understanding “that a politics that says there are superior and inferior human beings just isn’t the way to go.”
And that’s the thing that white people don’t trust us to do because they are so corrupt, their thinking is so morally and spiritually bankrupt about power that…they fear, viscerally, existentially, letting go of power, because they cannot imagine that there is another way to be. It is either that you dominate or you are dominated. And isn’t it sad that that is spiritually who they are, and that they can’t imagine a more expansive notion of the world?
By expressing such venomous, lunatic opinions as if they were obviously wise and virtuous, DiAngelo, Ho, Harriot, and Cooper give support to the idea that 2020’s racial reckoning did more to harm than help Proposition 16. The five months between George Floyd’s death and Election Day brought antiracist ideas and rhetoric to a large public for the first time. But the results were the exact opposite of those intended, starting with progressives’ disastrous attempt to make “Defund the Police” part of the Democratic brand.
The most plausible explanation for Prop. 16’s defeat is that an unexpectedly large number of non-white California voters, having taken stock of the riots and rhetoric, declined Ms. DiAngelo’s invitation to align against whiteness. Better to be white-adjacent than to join a movement whose leaders hector doubters with terms like white-adjacent. Better to express Latino pride and aspirations than to join with allies who instruct you that you’re Latinx. Working hard and playing by the rules endorses American-ness, not whiteness. It commits to the idea that effort, self-discipline, and family cohesion still count in a country that is not perfect but also not beset by “systemic” racism. That term’s pervasive use during 2020’s racial reckoning justified fears that affirmative action was not a modification to improve American society and better realize its goals, but one step in a much larger plan to replace America’s system with a new one, designed by social justice warriors whose plans are audacious and reassurances perfunctory.
The Affirmative Action Kludge
This brings us to the second question raised by Proposition 16’s defeat, concerning the substantive case in favor of affirmative action. After more than 50 years of rendering and debating affirmative action programs, it would seem impossible to say anything new or cast key questions in a different light. Wesley Yang, however, has argued that affirmative action’s justification has changed radically (in both senses of the term) over the past decade. Implications of racial preferences that were once concealed and denied have now been made explicit by “the activist cadres that run and staff the organs of the institutional left,” he wrote in the Washington Post, in particular the “critical choke points of the nonprofit and governmental civil rights apparatus.”
These activists are intellectually agile enough to wield the arcane vocabulary pervading academia (the evils they’re determined to eradicate include “ableism” and “cisheteropatriarchy”), but also too dim and callow to doubt or challenge what they’ve been taught. Yang’s designation for the entirety of this theoretical orientation is the “Successor Ideology.” As with the term “postmodernism,” it conveys the sense that urgent new conceptions of justice compel those who embrace them to discard principles and constraints that have had their day and served their purpose. Richard Delgado and Jean Stefancic explain in Critical Race Theory: An Introduction (2001), that “critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”
Currently, the most prominent popularizer of this viewpoint, having eclipsed even Ta-Nehisi Coates, is Boston University history professor Ibram X. Kendi, author of the bestseller How to Be an Antiracist (2019). Kendi manifests his contempt for rationalism and neutral principles by insisting that who gets ahead and who falls behind is the only question that matters about any public policy or social arrangement. “A racist policy yields racial disparities,” he wrote in the New York Times. “An anti-racist policy reduces or eliminates racial disparities.” Not differences in abilities, interests, or culture but racism, solely and completely, explains why there are so many black convicts and so few black surgeons. Antiracism requires eliminating, by any means necessary, all such disparities.
The problem, says Yang, commenting on Twitter, is that Kendi “purifies” the argument for affirmative action in a way that dispels “the fuzzy haziness…that made affirmative action a workable kludge,” a software term for a stop-gap measure. That haziness made it possible to believe that affirmative action was, somehow, consistent with the spirit if not the letter of foundational commitments to equality before the law, to judging people and respecting their rights as individuals rather than calibrating citizenship based on membership in a particular group. Kendi’s distillation of affirmative action to its anti-liberal essence renders race preferences more politically vulnerable than ever before. But proclaiming what affirmative action’s advocates had hidden for so long, and doing so in the belief that such disingenuousness has become unnecessary, also makes the republic more vulnerable to affirmative action in its new antiracist version than ever before.
The Diversity Dodge
Since 1978 the essence of the affirmative action kludge has been “diversity.” Only one Supreme Court Justice, Lewis Powell, fastened onto this concept in that year’s Bakke decision. Four justices voted to uphold admissions preferences at the University of California, Davis, medical school as a measure necessary to redress historical injustices and continuing disparities. Four others voted that the U.C. preferences violated applicants’ legal rights to have their credentials evaluated in a nondiscriminatory process. Powell decided the case by splitting the difference in his individual opinion: admissions officers could use race, gender, etc., but only as a “plus factor” for the limited purpose of creating a more diverse student body, a compelling state interest.
Diversity never made much sense as the rationale for affirmative action. Among its incongruities is that applicants admitted to a college that would have rejected them, absent its use of racial preferences, are selected not for their own benefit but to enhance the educational experience of the institution’s other students. As Slate’s Dahlia Lithwick wrote in 2002, if colleges really wanted diversity they’d be recruiting Maori warriors and Alsatian goat herders. The hypothetical problems led directly to real ones in 2004 when Harvard was confronted with a long New York Times article, wherein students and faculty complained that too many black students at Harvard were immigrants from Africa and the Caribbean, or the children of such immigrants, which meant that too few were blacks whose ancestors had been enslaved in the American South.
We now know that the diversity rationale wasn’t even supposed to make sense. The New Yorker’s Nicholas Lemann recently tracked down Robert Comfort, a retired tax attorney who was one of Lewis Powell’s clerks in 1978. “Sometimes the right answer is not the intellectually defensible answer,” Comfort told him. Looking for a compromise to defuse a heated controversy, Justice Powell settled on diversity as a standard that would not be especially clear or compelling, but also wouldn’t enrage anyone. Diversity, said Comfort, was the “middle ground” that would reduce tensions between advocates of color-blind admissions policies and those who saw preferences as explicit redress for slavery and Jim Crow.
Despite its contradictions, “diversity” proved a public relations masterstroke. It quickly became synonymous with affirmative action, and later was used to encapsulate a broader ideal of fairness, inclusion, and comity. In A Dubious Expediency: How Race Preferences Damage Higher Education (2021), a collection of essays edited by law professors Gail Heriot and Maimon Schwarzschild, Peter W. Wood of the National Association of Scholars writes, “A couple of generations of Americans have been born into a society in which diversity is treated as an unquestionable good and perhaps the preeminent value.” Scarcely any public, private, or non-profit organization in the United States lacks a published diversity statement and an institutional apparatus for implementing it. The triumph of diversity as an ideal has banished diverse opinions about diversity.
This victory in the marketplace of rhetoric has, however, only heightened affirmative action’s contradictions, making incoherence and deception central to preferences’ justification and practice. As in the world of the clandestine services, plausible deniability is crucial. Idealism stops emanating from the word “diversity” the moment it becomes too clear that affirmative action consists of separate standards for different groups. The U.C. Davis policy of setting aside 16% of its openings for non-whites was, worst of all, gauche and impolitic.
Twenty-five years after Bakke the Supreme Court rendered the same negative judgment in Gratz v. Bollinger (2003) against the University of Michigan, whose admissions office was, routinely and explicitly, adding the equivalent of an entire letter grade to black applicants’ grade point averages. But in a companion case, Grutter v. Bollinger, the Court upheld the University of Michigan law school’s admissions policies, which eschewed all such clarity. The Court noted and praised what it called the “holistic” affirmative action practiced by the law school. What is best about holistic admissions practices, for the purpose of defending affirmative action, is not that they are comprehensive but that they are subjective, opaque, and indecipherable. As Heriot and attorney Carissa Mulder say in A Dubious Expediency, despite the conflicting judgments, the difference between the two University of Michigan versions of affirmative action was “essentially cosmetic.”
People use cosmetics to hide ugly features. In 1997, for example, civil rights groups financed an out-of-court settlement in the case of Sharon Taxman, a Piscataway, New Jersey educator laid off for teaching while white. Rather than let the U.S. Supreme Court hear a case with a singularly awkward set of facts—the school district’s finances required laying off one teacher; seniority was the usual criterion; between a black and white teacher who happened to have been hired on the same day, the district dismissed the white teacher for the sake of diversity—civil rights groups gave Taxman over $300,000 in exchange for her agreement to drop the lawsuit. The Washington Post reported that it was “virtually unheard of” for third parties to direct the settlement of a case the Supreme Court had already agreed to hear. But there was nothing holistic about a suit where “race was the single deciding factor in determining which teacher to keep.” An adverse Court ruling “could gut the infrastructure of affirmative action,” the school board’s attorney said.
“Race-norming” was an even more explicit practice that was, as a result, an even bigger public relations problem for supporters of affirmative action. In 1980 the Employment Service, a division of the U.S. Department of Labor, embraced a clear, simple solution to a big problem: blacks and Hispanics got lower scores than whites on the General Aptitude Test Battery (GATB), used by many state labor departments to refer job-seekers to private employers. Assuming that the disparity was the result of a biased test—the National Academy of Sciences later determined that the GATB was, if anything, overpredicting blacks’ job performance—the Employment Service directed state offices to report in-group percentile scores rather than raw results.
Before race-norming, if a black, Hispanic, and white job seeker each scored 300 on the GATB, an employer would see the raw scores and conclude that the three applicants were very similar in ability. After race-norming, the reported number would not be the test score itself, but where that score ranked within a particular ethnic category. A black jobseeker’s 300 on the GATB, for example, would be reported as 79, since 79% of blacks taking the test got scores lower than 300. In the same fashion, a Hispanic jobseeker’s score of 300 would be reported as 62, and a white applicant’s score as 38. The employer would, as intended, conclude that the white applicant was far less promising than the other two.
Like bluffing in poker, race-norming doesn’t work if people know you’re doing it. Neither the jobseekers who took the test nor the employers who received their results were informed that the scores had been adjusted based on in-group performance. This secrecy was also necessary for race-norming to be politically tenable. As soon as its existence became widely known in 1990, a controversy culminated in it being explicitly banned in the 1991 Civil Rights Act. Writing in the liberal American Prospect in 1993, sociologist Paul Burstein said that race-norming was “so contrary to any reasonable concept of merit hiring that it provided a great deal of ammunition for opponents of affirmative action.” By agreeing to ban the practice, he continued, Democrats showed that they were determined to keep affirmative action within sensible limits.
Level the Playing Field
But that was then. Now, a racial reckoning and Ibram Kendi have reframed the debate, creating an irrebuttable presumption that any test or any human activity yielding a racially disparate result further confirms the pervasive, pernicious effects of white supremacy. No one is explicitly calling for race-norming…yet. People are just starting to act like there is, come to think of it, a lot to be said for the practice. When COVID vaccinations first became available in late 2020, for example, the Centers for Disease Control had to choose between prioritizing vaccinations for the elderly, those most likely to die from the virus, or frontline workers, who were most likely to transmit it. Their deliberations were assisted by medical ethicist Harald Schmidt, who pointed out, “Older populations are whiter” because society is “structured in a way that enables [whites] to live longer.” This consideration, he reasoned, argued against putting the elderly at the front of the vaccine queue: “Instead of giving additional health benefits to those who already had more of them, we can start to level the playing field a bit.”
The CDC did not endorse Professor Schmidt’s recommendation, partly because of the controversy his remarks caused. But a year later, several medical providers had taken the Food and Drug Administration’s strong hint to ration care in the same fashion. As summarized by the Free Beacon’s Aaron Sibarium, FDA guidance led New York to make racial minorities automatically eligible for COVID-19 therapeutics, “regardless of age or underlying condition.”
In Utah, “Latinx ethnicity” counts for more points than “congestive heart failure” in a patient’s “COVID-19 risk score”—the state’s framework for allocating monoclonal antibodies. And in Minnesota, health officials have devised their own “ethical framework” that prioritizes black 18-year-olds over white 64-year-olds—even though the latter are at much higher risk of severe disease.
If hospitals and state health departments are, at the behest of federal agencies, race-norming the criteria that determine which Americans keep breathing, it’s hard to assume that any less urgent question will be decided in a color-blind manner. Forthright rehabilitation of race-norming would constitute the most direct embrace of Kendi’s axiom that all disparities stem from racism. The world presents antiracist activists a target-rich environment.
Consider: The National Football League has been trying, with limited success, to increase the number of non-white head coaches and general managers. Current rules require teams to interview at least one minority candidate for each opening at this level, but doing so has not led to a significant increase in hiring. In 2020 the league considered the use of incentives: teams with a minority coach or general manager would get a better position in the draft of college players. The proposal was rejected after Tony Dungy, the first black coach to win a Super Bowl, questioned it publicly. “[N]obody feels like they want anything special,” he said. “Don’t hire me and then say I’m going to give you more draft choices later on.” If the idea is merely dormant rather than dead, however, the NFL may someday award extra draft choices to teams with black coaches or general managers. And if the results still disappoint, a logical next step would be to give such teams a touchdown advantage before the opening kickoff, or allow them to play 12 men against the opponent’s 11.
Similarly, the American Bar Association (ABA) says that white law school graduates pass the bar exam on the first attempt 88% of the time, compared to 76% for Hispanics and 66% for blacks. In California, whose standards are tougher than those in most states, the disparity is greater. The Los Angeles Times reported in 2020 that, among graduates of California’s ABA-accredited law schools, 51.7% of whites passed the state bar exam on the first attempt, as did 42.2% of Asians, 32.6% of Latinos, and 5% of blacks. Furthermore, 46.9% of blacks who take it never pass the California bar exam, even after multiple attempts, compared to 30.5% of Latinos and 19.5% of whites.
The dean of UCLA’s law school lamented that setting a high cutoff point for passing the bar exam undeniably reduces the diversity of the state’s legal profession, while she characterized the relation between doing well on the bar exam and being a good attorney as a contestable question. Rather than a protracted debate over which minimum score would enhance diversity without compromising legal competence, or what kind of test would yield similar results among all demographic groups, it seems only a matter of time before someone combines the wisdom of Ibram Kendi and Harald Schmidt to argue for race-norming the bar exam. The simple expedient of grading each demographic group on its own curve would eliminate disparate pass rates. Once the criterion for becoming a lawyer is race-normed, it would make sense to have varying, ethnic-specific standards further along in legal careers, such as how many votes an attorney needs for his client to win a jury trial, or the number of hours an associate must bill to be considered for partnership.
Purpose and Principle
Affirmative action came into being because of a contradiction between the civil rights movement’s purpose and its principles. The purpose was to elevate blacks—in the words of Nicholas Lemann, a stalwart defender of affirmative action, the 14th Amendment and the 1964 Civil Rights Act “aimed at African-American progress.” The principle was to affirm liberal democracy’s most basic commitments by making sure that they extended to all Americans, equally. Thus, the Civil Rights Act is replete with guarantees that no person shall be discriminated against based on race, color, religion, sex, or national origin. Depending on how one judges the civil rights movement’s candor and integrity, it either sincerely hoped or cynically pretended that such guarantees would do most of the work necessary to effect African-American progress.
As a matter of principle, though, it was clear that the law forbade the University of California, Davis, from treating Allan Bakke differently because he was white than it would have treated him if he weren’t, just as it was illegal for the Piscataway school board to eliminate Sharon Taxman’s teaching position because she was white. Both are persons, and both were being discriminated against on account of their race. But regarding such basic facts as dispositive would have been an impediment to increasing the number of black doctors and schoolteachers.
Hence, the half-century kludge of insisting that affirmative action could elevate blacks by diminishing whites’ rights (and later Asians’ rights), but only in ways that were modest and not severely harmful to those dispossessed. Lemann wrote in 1995 that the essence of this kludge is “that it’s O.K. to reverse discriminate as long as you’re not really obvious about it.” He now concedes that people like Bakke, Taxman, and Asian applicants to Harvard are victims of racial discrimination, albeit in “a very narrow sense,” which is one way to characterize what happens when a law saying that no person shall be discriminated against gives rise to policies that say some people can and must be discriminated against.
In 2003, 25 years after Bakke, Justice Sandra Day O’Connor upheld affirmative action at the University of Michigan law school while expressing the hope that the Court and country had placed preferences in the course of ultimate extinction, so that they would no longer be necessary after another 25 years. Nineteen years on, no one on any side of the affirmative action debate thinks that preferences are six years away from self-liquidating. In Affirmative Action Around the World (2004), economist Thomas Sowell examined policies in several countries that conferred benefits to specific groups for the purpose of redressing historical injustices or imbalances. He was unable to find a single affirmative action policy that was not instituted with the promise that it would be a temporary measure. He was also unable to find a single affirmative action policy that did in fact sunset. “A ‘temporary’ program to eliminate a centuries-old condition,” he concluded, “is almost a contradiction in terms.”
So the problem will not go away, no matter how exasperating the country finds it. The tension between civil rights purposes and principles will not resolve itself. Instead, on the question of remedial justice America will become all one thing or all the other. Rather than remain a holistic kludge, affirmative action will become either unabashed or untenable. If Ibram Kendi prevails, whites (and non-blacks more generally) will be made to care and made to share. If Chief Justice John Roberts prevails, the country will conclude that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” as he wrote in a 2007 Supreme Court decision, Parents Involved in Community Schools v. Seattle School District No. 1.
Proposition 16’s defeat in the last election does not guarantee that Roberts’s position will prevail over Kendi’s. But it does suggest that as America’s demography becomes more like California’s, affirmative action’s political position will become increasingly precarious. Contrary to expectations, the coalition of the ascendant appears to be coalescing around the idea that it is neither fair nor feasible to apportion rights and opportunities in a vast, dynamic, diverse society by calibrating each group’s demographic representation and historical grievances.