Next stop on affirmative action: Find middle ground
by Susan Estrich
April 24, 2014 12:00 AM | 665 views | 0 0 comments | 28 28 recommendations | email to a friend | print
In the mid-90s, when affirmative action was a hot topic in California, I got a call from a television network asking me whether I would be available to do a segment on affirmative action. As is always true on television, the first and critical question was: “Are you free at 3?” I was. Great, the young woman said.

“So are you for or against affirmative action?”

I explained: I’m against affirmative action, if you mean do I think that someone should automatically get a contract, even if they’re not the low bidder, just because of race. On the other hand, where there’s a past history of discrimination (for example, the Los Angeles Police Department, at the time) or a compelling need for diversity (for example, in law schools, where I can’t imagine teaching a constitutional law class to a room full of only white students), then yes, I support affirmative action.

“That makes so much sense,” the young woman said (which was good, because it also happened to be the law of the land). “So would you say you’re for or against affirmative action?”

I tried again with more examples: why it’s important to have black students even if they are from privileged backgrounds, because they likely will have experienced discrimination in ways other students haven’t (which is true to this day when I ask about police stops); why in places where there are few blacks in leadership positions you have to count (not quotas, just counting) to make sure unconscious patterns of discrimination (most of us think the most qualified person is someone who looks like a younger version of ourselves) don’t persist.

The young woman was impressed. She told me I made more sense than anyone she’d talked to. I told her that the way I read the polls, most Americans actually agreed with the position I was trying to stake out.

There was just one problem: I needed to be either for or against affirmative action, and since I was neither, or both, and they were having only two guests ...

In 2003, the United States Supreme Court upheld the admissions policy at the University of Michigan Law School, which took race, among other factors, into account in admissions. Three years later, the voters passed a referendum — similar to the one enacted in California in 1996 — that barred public colleges and universities from affording “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.” On Tuesday, the Supreme Court upheld the law by a vote of 6 to 2, concluding that the state’s voters have a right to decide whether or not affirmative action should be allowed.

“This case is not about how the debate about racial preferences should be resolved,” Justice Anthony Kennedy wrote for the majority. “It is about who may resolve it.”

The “who” is us. What the court has made clear is that it is up to the democratic process, up to us.

So here we go again. Turn on the television, and you’ll no doubt find someone yelling about how affirmative action should always be allowed and someone else yelling back about how it should never be allowed. It makes for good television and bad policy.

I wish we lived in a world where colleges and universities could have diverse classes without regard to affirmative action. But we don’t. The experience in California has been painful: At the elite public universities, as Justice Sonia Sotomayor noted in her dissent, which she read from the bench, the number of racial minorities plummeted after the passage of Proposition 209 and continues to lag.

“Mend it; don’t end it.” That was the approach of the Clinton administration. Sadly, when you impose “equality” on an unequal world, you don’t get equality. The debate continues because the problem of inequality persists, and it’s not a question that is solved by an easy “yes” or “no.” When the yelling stops, we need to find a middle ground and keep fighting the stubborn persistence of racial inequality.

Susan Estrich is a law professor in Southern California and managed the 1988 presidential campaign of Michael Dukakis.

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