How to Be Affirmative but Not Discriminate : Berkeley case shows need for nuance as well as commitment

To many white Americans on the street, affirmative action means that companies have to hire--and schools have to admit--more minorities because the government says so. In 1992, at least where one law school is concerned, the truth is that the school, not government, is driving more minority enrollment.

Last week, the Office of Civil Rights of the Department of Education found Boalt Hall, the law school of the University of California at Berkeley, in violation of the Civil Rights Act. At issue were Boalt Hall’s methods in pursuit of its declared goal of 23% to 27% minority admissions.

This goal itself was not set in response to any government directive. Boalt Hall Dean Herma Hill Kay in her reply to the Civil Rights Office adduces no statute or court decision but only Standard 212 of the American Bar Assn., which provides “that ‘the law school shall demonstrate . . . a commitment to victims of discrimination.’ ”

In other words, Boalt Hall’s admissions policy is not required by law but only fostered by a particularly forthcoming view of what is entailed by “a commitment to victims of discrimination.” Ironically, however, the law that Boalt Hall is accused of violating is the very 1964 law that was to abolish discrimination.

MATTER OF MATH: The agreement between Boalt Hall and the Civil Rights Office is, in effect, a plea bargain sought by the law school. Dean Kay minimizes its “remedial provisions”: “We think we can correct these concerns about our program with very minor procedural changes and continue the thrust of our program.” But the outsider may wonder how a program with admissions goals stated in percentages can be brought into compliance with, among other federal remedial provisions, the following: “If Boalt Hall adopts numerical or percentage . . . goals that reference race, color, or national origin, such goals will not be applied in the admissions process in a way designed to ensure the result with respect to the particular number or percentage distribution of students based on race, color, or national origin.” Past the legalese, that sounds very much like: “You can do it, so long as you don’t really do it.”

But Kay may be right after all. Against the worries of some at other law schools, Berkeley’s formal approach to diversity, including separate waiting lists for different ethnic groups, may now give way--without any change in the end result--to the more informal methods of other schools.

When available seats are a fixed number, any policy to increase black and Latino (or other underrepresented minority) enrollment is necessarily a policy to decrease white and Asian enrollment. Mathematically, it simply cannot be otherwise. And the question must be asked in public no less than in private: Is the social gain--ethnic and other diversity in the legal profession--worth any sacrifice of the meritocratic ideal?

SIGNAL OF HOPE: At the end of a long day, we think it is. As Alexis de Tocqueville noted, lawyers rule America. If there is any one profession whose true racial integration is the key to American interracial justice, it is this one.

The costs of a change that the old could have made are borne, unfairly, by the young. Yet the ironic reversal of roles--the spur to integration coming from within the society and the rein on it coming from a government concerned with impartiality--should strike us as good news. Government alone, no matter how charismatically led, cannot rebuild the social foundation on which government rests. Only society can remake society.

American race relations can seem a maze of mirrors in which everyone is lost and no one can see any face but his or her own multiplied. But taken together, the Civil Rights Office’s compliance review and Boalt Hall’s reply strike us as a paradoxical sign of hope. It may be possible, after all, to pursue social goals without sacrificing individual rights.