Law reviews are filled with sophisticated and often impassioned debates over the use of racial and gender preferences in employment, education, and electoral districting. As a political scientist I am particularly interested in a puzzle that has received far less attention in the legal literature: How have such highly unpopular programs become so well entrenched in public policy and in the practices of employers and educational institutions? In this Article, I will suggest that part of the answer lies in the nature of the peculiar regulatory regime that has evolved since 1964 to interpret and enforce nondiscrimination rules relating to race, gender, and disability. This regulatory regime, which governs the conduct of nearly every employer, school, and unit of state and local government in the country, is notable for its lack of transparency and accountability--features that, for better or for worse, insulate it from ordinary politics.
That the use of racial and gender preferences lacks public support is hard to deny. A recent Century Foundation report noted that:
Racial preferences in higher education remain highly unpopular
among voters, who consistently register opposition
by a two-to-one margin. Anti-racial preference referenda
have been put to voters in six states--both "blue" and
"red"--and prevailed in five of those: California (1996),
Washington (1998), Michigan (2006), Nebraska (2008), and
Arizona (2010). (1)
The most comprehensive political science analyses of the subject, Paul Sniderman and Thomas Piazza's The Scar of Race and Sniderman and Edward Carmines' Reaching Beyond Race, found that opposition to affirmative action is so intense that the mere mention of the topic early in a polling interview increased the prevalence of negative racial stereotypes and decreased support for programs designed to help racial minorities later in the interview. (2) Recognizing these political realities, colleges and graduate schools have gone to great lengths to obscure the size of the boost given to minority candidates in the admissions process. (3) In American politics one rarely finds such a huge and persistent gap between public policy and public opinion.
A possible explanation for the creation and survival of these unpopular policies is that they have been imposed by unelected judges who use constitutional interpretation to circumvent the political process. This was certainly true of busing to achieve school desegregation in the 1970s, but it does not explain the persistence of affirmative action in employment, college admission, or electoral districting, where federal regulation is based on federal statutes rather than on the Constitution. In these areas, the Supreme Court often has tried to tamp down use of gender and racial preferences only to see its decisions overridden by Congress or circumvented by regulators. The most important examples are the Civil Rights Act of 1991, (4) which reversed a number of Supreme Court interpretations of Title VII of the Civil Rights Act of 1964 that had made it more difficult for plaintiffs to win "disparate impact" suits, (5) and the the Voting Rights Act Amendments of 1982, (6) which overturned Supreme Court decisions that had reduced federal pressure to create "majority minority" electoral districts. (7) Far from demonstrating the strength of the "imperial judiciary," affirmative action illustrates the limits of the Supreme Court's control over policymaking and the extent to which Congress has been willing to step in to defend the status quo.
John Skrentny, the author of the most thorough and convincing explanation of the creation of affirmative action policies under Title VII, (8) has offered a number of explanations for their persistence. (9) Most importantly, opposition to affirmative action is broad but diffuse. It is not a top priority of many voters or of any significant political organizations. (10) Supporters of affirmative action, in contrast, care deeply about the issue, are well organized, and are quick to mobilize against threats to the status quo. …