The New Assault on Affirmative Action.
Until recently, it seemed that the new assault on affirmative action, which began with the push to put the proposed California Civil Rights Initiative on the state's ballot this November, might never cross the Sierras.A year ago, with the polls showing wide support, even among women, C.C.R.I. looked like a certain winner, its influence evident beyond California. Governor Pete Wilson, a politician with a reputation as a shrewd diviner of wedge issues, had embraced it as a key part of his presidential campaign, and in its pursuit had twisted enough arms among the University of California regents to effect a vote last summer abolishing all race and gender preferences in U.C. admissions, hiring and contracting. In Congress, the new Republican majorities seized the issue, began to hold hearings and threatened to attach prohibitions against race preferences to every appropriations bill in sight. And this fall C.C.R.I -- which would prohibit race and gender preferences in all of California's public-sector activities, from college admissions to minority set-asides in contracting -- will indeed be on the state ballot.But the political leaders of the C.C.R.I. campaign, Wilson and Sacramento businessman (and U.C. regent) Ward Connerly, encountered problems last winter getting the 700,000 signatures they needed to appear on the ballot -- in the end, they were forced to pay commercial signature-gatherers premium prices for the job -- in what looked like a classic case of support that may run a mile wide but is only an inch deep. In the meantime, Wilson's presidential campaign had fizzled -- even California Republicans disapproved of his decision to run just a few weeks after he had promised not to. Wilson, who until a few years ago had been a strong backer of affirmative action, was thus left with little but the sour reputation of a man who had cynically expected to exploit the issue for his presidential race, as he had exploited the issue of illegal immigration in his 1994 gubernatorial re-election campaign. No state other than Colorado has followed California in abolishing affirmative action in its public universities; no major California business or business leader, among them Wilson's most ardent backers, has expressed support for C.C.R.I. In Congress, affirmative action was also declining on the priority list.Now, however, all bets are off. The March 18 decision of a three-judge panel of the Court of Appeals for the Fifth Circuit prohibiting the use of race-based admissions criteria to achieve diversity at the University of Texas Law School casts a shadow over every educational affirmative action program in the country, and thus forces the matter right back onto the national agenda. The central issue in the Texas decision is the Supreme Court's 1978 ruling in Regents of the University of California v. Bakke, which held, in effect, that while numerical quotas, such as the one that had been used in admissions to the University of California at Davis Medical School, were unconstitutional except as remediation for the effects of immediate past discrimination, institutions might consider race as a "plus factor" -- "one element in a range of factors a university may properly consider" -- in the attempt to achieve diversity in the student body. Bakke thus became the linchpin of all affirmative action in college admissions, and "diversity" its shining ideal. The Fifth Circuit decision, Hopwood v. State of Texas, far from being Bakke II, as some reporters have described it, in effect declares Bakke a dead letter.Hopwood, like Bakke, began with a suit by rejected white applicants who charged -- probably correctly -- that they had been turned down solely because of their race. Indeed, the law school's rating system was set up in such a way that the same "Texas Index Score" (a combination of college grade-point average and Law School Admission Test scores) that placed underrepresented minorities -- blacks and Latinos -- among the "presumptively admitted" put white applicants among the "presumptively rejected." The system was driven not by a search for real diversity, the court found, but by the wish to get a certain proportion of blacks and Latinos into each class. It was thus possible, as one member of the Fifth Circuit panel, Jacques Wiener Jr., believed, to decide the case on far narrower grounds: The Texas law school's affirmative action policies, as he argued in his concurring opinion, were not based on a broad search for diversity (in talent, experience and background) but exclusively on certain racial and ethnic criteria. Texas had been doing nearly the same thing that the Supreme Court, in Bakke, had prohibited the U.C., Davis, Medical School from doing.But Wiener's two colleagues -- Jerry Smith and Harold DeMoss Jr., one appointed by Ronald Reagan, the other by George Bush -- were determined to bulldoze Bakke into oblivion. In so doing, they seized on what had been both Bakke's essential strength and its frailty: Justice Lewis Powell's singular opinion straddling the 4-4 split between his sharply divided Supreme Court colleagues. On one side were Justices Burger, Rehnquist, Stewart and Stevens, who held that the Civil Rights Act of 1964 barred any discrimination on the basis of race in any program receiving federal assistance; on the other were Justices Brennan, Marshall, Blackmun and White, who thought that a university could properly use race to remedy the effects of past societal discrimination, even if there had been no immediate past bias in the institutions that did the remediating. It was Powell alone who created a sliver of common ground by devising the useful fudge of the "plus factor," the very thing that gave the decision its strength as a tool for public policy. If a university could use special talents, handicaps, geographic and social background, alumni relationships and virtually everything else to assemble a diverse student body, Powell reasoned, why couldn't it use race -- which certainly implies a whole set of special experiences -- as well?Wiener, also a Bush appointee, found the "singularity" of Powell's opinion to be "precisely" what made it "the most pertinent Supreme Court statement on this issue," and he warned that "when and if the Supreme Court addresses [the Hopwood] case or its analog, the Court will have no choice but to go with, over, around or through Justice Powell's Bakke opinion." But his two colleagues had no difficulty with that at all: Citing recent High Court decisions sharply narrowing the scope of affirmative action in public sector contracting, they pushed through Powell themselves. No other Justice, they said, had joined him in his opinion, and with one exception, no other Supreme Court opinion had cited it. "Subsequent Supreme Court decisions regarding education," Smith wrote, "state that non-remedial state interests will never justify racial classifications....Justice Powell's view is not binding precedent on this issue." Any use of race in this manner is thus a violation of equal protection under the Fourteenth Amendment.Although the Supreme Court has been moving consistently to trim or eliminate race-based affirmative action in contracting and employment -- and although Texas has announced its intention to appeal -- it's far too early to know what higher courts will do with Hopwood. But in light of the fact that, with the exception of cases where immediate past discrimination is to be remedied, no consideration may now be given to race in public school admissions in the states of the Fifth Circuit (Louisiana, Mississippi and Texas), Hopwood has become a firebell in the night for university admissions. It immediately gave new heart to people like Clint Bolick at the conservative Institute for Justice, who have been leading the national assault on all race considerations in public sector activities. In California, where Wilson and Connerly had begun to look like nothing so much as opportunists and bullies, they could now claim, as Connerly immediately did, that rather than being reactionaries, they were ahead of the curve. And it certainly raises the stakes; if the courts ever follow election returns, they are likely to follow on issues like this, where clear constitutional lines have always been hard to draw. On both counts, Hopwood has given political life to something that had, for a time, seemed like last year's issue.C.C.R.I. is hardly a sure thing, despite its continuing lead in the polls. At almost the same time Hopwood was decided, Connerly and some of his fellow regents were buffeted by disclosures that, even as they were trying to do away with affirmative action in U.C. admissions, they and a number of other influential people had been quietly asking for favorable treatment of the applications of children of colleagues or friends, and occasionally getting it. It is hardly a new practice, either at U.C. or elsewhere, where large donors, politicians and other bigwigs -- not to mention athletes and alumni sons, now also daughters -- have long got special attention. But given the extent to which it had been institutionalized (and publicly denied) at places like U.C.L.A., it hardly strengthened the moral case for a color-blind, by-the-numbers admissions policy. Connerly, who is himself black, had long tried to assert that he had not taken advantage of minority set-asides in seeking contracts for his business: His form of affirmative action, political connections, was of a more traditional kind.In February, after months of disarray, the various forces supporting affirmative action, including civil rights and women's groups, finally began to get together. More important, they found what may be C.C.R.I.'s Achilles' heel, a provision concerned not with race but with gender. The core of C.C.R.I. is a simple sentence stating that no state or local agency in California may "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." But a separate paragraph (c) adds a qualification that nothing in the first section "shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education or public contracting."The supporters of C.C.R.I. say the language is taken from the 1964 Civil Rights Act and is a well-established exception to cover such things as the ability to choose women to search women prisoners in police stations and jails. But its opponents, armed with an opinion by University of Southern California law professor Erwin Chemerinsky, say the potential impact is far greater. Yes, bona fide qualifications are recognized in employment, but "no current law, state or federal, allows gender to be used as a qualification for public education or public contracting." What meaning does it then have in those areas? If the Republican Congress succeeds in weakening federal Title IX protections for women, says Chemerinsky, section (c) could allow a major rollback in equal protection for women in universities -- greater disparities, for example, in funding between women's and men's sports programs. C.C.R.I. would also eliminate academic and job opportunity outreach programs for women and minorities: special science and math programs to encourage girls to enter those fields, special college prep programs for underrepresented minorities in the schools. More important, C.C.R.I. "creates a vehicle for any white male denied employment to file a lawsuit and allege that an impermissible preference was given to a woman or minority who was hired instead." Latinos may not vote in high numbers, but women do.The Chemerinsky warnings may be exaggerated, but the rigidity of C.C.R.I. -- its absolute prohibition of any race or gender preference -- is undeniable. If the Los Angeles police want to hire more black or Latino cops to make the force more effective and credible in a city of minorities, C.C.R.I. says they may not. Nor could the district attorney or the public defender's office, in an effort to give the legal system more legitimacy, seek out more minority lawyers. Nor could the state's public schools give a shade of preference to minorities in recruiting and training teachers for a system whose 5.5 million pupils are nearly 60 percent minority.Opponents of race-based affirmative action have correctly cited instances where the marginal preferences that Lewis Powell contemplated in Bakke grew into systematic race-based exclusion of whites and Asians. In a survey of the 1993 graduates of U.C., Irvine, the Vietnamese applicants who were rejected by U.C. medical schools had higher grade-point averages than the black and Latino affirmative action applicants who were accepted. Something similar had been true at Berkeley's Boalt Hall law school, where in 1992 the Office for Civil Rights of the U.S. Education Department found that the effort to fill ethnic goals and quotas was driving the admissions process, thus illegally "circumscribing competition and effectively excluding applicants from consideration...based on their race or ethnicity." In a state like California, with its highly diverse population, such practices become increasingly indefensible. Achieving diversity by excluding highly qualified Chinese and Japanese applicants, who themselves are members of minorities that, until not so long ago, suffered from egregious discrimination in California, or creating systems in which affluent blacks and Latinos must get preference over poor whites and Asians, as U.C., Berkeley, does in its undergraduate admissions, is hardly a morally satisfying practice.And yet neither is a remedy like C.C.R.I., which would slam the door on every attempt to accommodate diversity. That, of course, brings the argument full circle, back to the genius of Lewis Powell's fudge factor. As law, which prefers clearly drawn lines, it was never entirely satisfactory; "diversity" is itself an amorphous thing to define. But as a rough guide for policy in a field as complex as this -- and in a nation as necessarily ambiguous about the meaning of equality as we are -- it's not easy to think of a better alternative. No open society has ever fully resolved the tension between objective standards and necessarily subjective personal judgments -- whether in civil service or in graduate school admissions. We do not choose our doctors by test scores alone. Nor, if we know what's good for us, should we so choose our cops, our firefighters or our teachers. Race is properly a suspect category, in law as in general society. But it is there, everywhere in our lives. Both Hopwood and C.C.R.I. would permit the use of all other criteria -- preferences for those with economic handicaps, or with special abilities, or from certain geographic areas, or from families where no one had ever gone to college, or from limited English-speaking backgrounds -- a whole panoply of surrogates for race and ethnicity. Still, they fail because they would require us to be blind -- or to pretend to be blind -- to something as plain as the noonday sun. C.C.R.I. may still be defeated in November, but Hopwood, by legitimizing positions that a few months ago were badly tainted by Governor Wilson's politics, is changing the odds.