Affirmative Action: Don't Mend It or End It-Bend It

By Schuck, Peter H. | Brookings Review, Winter 2002 | Go to article overview

Affirmative Action: Don't Mend It or End It-Bend It


Schuck, Peter H., Brookings Review


Affirmative action policy--by which I mean ethnoracial preferences in the allocation of socially valuable resources--is even more divisive and unsettled today than at its inception more than 30 years ago.

Affirmative action's policy context has changed dramatically since 1970. One change is legal. Since the Supreme Court's 1978 Bakke decision, when Justice Lewis Powell's pivotal fifth vote endorsed certain "diversity"-based preferences in higher education, the Court has made it increasingly difficult for affirmative action plans to pass constitutional muster unless they are carefully designed to remedy specific past acts of discrimination. Four other changes the triumph of the nondiscrimination principle: blacks' large social gains; evidence on the size, beneficiaries, and consequences of preferences: and new demographic realities--persuade me that affirmative action as we know it should be abandoned even if it is held to be constitutional.

"As we know it" is the essential qualifier in that sentence. I propose neither a wholesale ban on affirmative action ("ending" it) nor tweaks in its administration ("mending" it). Rather, I would make two structural changes to curtail existing preferences while strengthening the remaining ones' claim to justice. First, affirmative action would be banned in the public sector but allowed in the private sector. Second, private-sector institutions that use preferences would be required to disclose how and why they do so. These reforms would allow the use of preferences by private institutions that believe in them enough to disclose and defend them, while doing away with the obsfuscation, duplicity, and lack of accountability that too often accompany preferences. Affirmative action could thus be localized and customized to suit the varying requirements of particular contexts and sponsors.

Triumph of the Nondiscrimination Principle

Why is change necessary? To explain, one must at the outset distinguish affirmative action entailing preferences from nondiscrimination, a principle that simply requires one to refrain from treating people differently because of their race, ethnicity, or other protected characteristics. Although this distinction can blur at the edges, it is clear and vital both in politics and in principle.

When affirmative action became federal policy in the late 1960s, the nondiscrimination principle, though fragile, was gaining strength. Preferences, by contrast, were flatly rejected by civil rights leaders like Hubert Humphrey, Ted Kennedy, and Martin Luther King, Jr. In the three decades that followed, more and more Americans came to embrace nondiscrimination and to oppose affirmative action, yet as John Skrentny shows in his Ironies of Affirmative Action, federal bureaucrats extended affirmative action with little public notice or debate. Today, nondiscrimination, or equal opportunity, is a principle questioned by only a few bigots and extreme libertarians, and civil rights law is far-reaching and remedially robust. In contrast, affirmative action is widely seen as a demand for favoritism or even equal outcomes.

Social Gains by Blacks

Blacks, the intended beneficiaries of affirmative action, are no longer the insular minority they were in the 1960s. Harvard sociologist Orlando Patterson shows their "astonishing" progress on almost every front. "A mere 13% of the population," he notes, "Afro-Americans dominate the nation's popular culture.... [A]t least 35 percent of Afro-American adult, male workers are solidly middle class." The income of young, intact black families approaches that of demographically similar whites. On almost every other social index (residential integration is a laggard), the black-white gap is narrowing significantly; indeed, the income gap for young black women has disappeared.

Even these comparisons understate black progress. Much of racism's cruel legacy is permanently impounded in the low education and income levels of older blacks who grew up under Jim Crow; their economic disadvantages pull down the averages, obscuring the gains of their far better-educated children and grandchildren. …

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