IN 1971 Marco DeFunis was denied admission to the University of Washington Law School, even though his grades and aptitude test scores were superior to those of "virtually all the black students who were accepted." He sued. The Washington State Supreme Court upheld the university's action, and the U.S. Supreme Court agreed to hear DeFunis's appeal. Since the other eight justices were equally divided William O. Douglas held the swing vote. Douglas's recently opened papers reveal uncharacteristic indecision. "He seemed genuinely torn," notes Nicholas Lemann in a perceptive essay on affirmative action.
On the one hand, Douglas opposed racial preferences; on the other, "he was a fiery liberal and champion of the downtrodden who had come down on the side of blacks in every landmark civil rights case." After several drafts that argued the matter to differing conclusions, his final draft opposed reverse discrimination but let the Washington courts decision stand. Douglas escaped the apparent contradiction by indicting the Law School Aptitude Test as racially biased, even though he had no evidence to support this claim. So," Lemann concludes, "he went through every possible feeling one can have about affirmative action and wound up in effect throwing up his hands" ("Taking Affirmative Action Apart," New York Times Magazine [June 11,1995]).
Since its inception in the 1960s, "affirmative action" has come to mean many things. Originally a description of special efforts to solicit minority applicants, it now includes the favoring of women and minorities over men and whites who, as judged by test scores and other prevailing criteria, are better or equally qualified. In part, the practice has developed voluntarily, but its better-known forms occur by virtue of governmental mandates. Though it has provoked public controversy from time to time, on the whole affirmative action evolved with minimal public dissent. But the practice is now under heavy attack. Following the Republican triumphs in 1994, significant political power has massed to end virtually all that goes by the name of affirmative action. For the first time the concept has become the object of extensive public debate.
Many attackers argue that specific affirmative action programs have allowed widespread abuse and that most have failed to serve their stated purpose: to correct the consequences of generations of institutional discrimination. But the criticism of results is almost invariably joined to a principled insistence that affirmative action, whatever its effects, is inherently unjust or unfair. This view holds that affirmative action commits the very kind of injustice whose consequences it is supposed to correct. Our public life should be blind to differences of religion, race, gender or ethnic origin. To defy this principle is always an offense to human dignity, and to justify its current violation on the grounds that it has been violated in the past is a practical contradiction. Even if some programs of affirmative action make an important difference, reverse discrimination is no less discrimination.
Attacks on the practice are sometimes a covert attempt to maintain established patterns of racial and gender ad vantage. But the fundamental moral vision of a society that is fair to all is profoundly important to many citizens. Even those who believe that minorities and women do not have equal access to the social conditions of human flourishing may nonetheless question affirmative action. Like Douglas, many of us are genuinely torn.
MY INTENT HERE is to address this confusion. I take it as a given that the problems affirmative action is meant to remedy are both real and acute. I further assume that there are or could be forms of affirmative action (for instance, in employment decisions, governmental contract awards or higher education admissions) that have important positive effects. The question, then, is whether the very concept of affirmative action violates an overriding moral commitment of our democratic society. …