When California voters passed Proposition 209 and outlawed government-sponsored affirmative-action programs, they were sending a simple message to politicians and bureaucrats: If affirmative action requires racial preferences, end it--because you can't mend it.
It is precisely this kind of moral simplicity, however, that makes Proposition 209 so troublesome. The proposition's backers asserted the superiority of pure principle. They asked, "Doesn't everyone agree that we want a colorblind and equal-opportunity society?"
Of course they do. But this isn't the only question, nor necessarily the most important. Ever since it became the center of national controversy, affirmative action has too often been framed as one of categorical certainty on all sides, to the point of fostering a moralism that brooks no disagreement. But, ultimately, affirmative action must be viewed in relation to other competing and legitimate values and in the light of many practical problems. It often represents a collision of "right" vs. "right," rather than of "right" vs. "wrong."
But skepticism about Proposition 209 does not imply any blanket endorsement of affirmative action. The use of race to overcome past and present racism has resulted in "excesses" and has frequently violated the promise of equal protection to all citizens. It seems fair to say that Proposition 209 is as blunt an instrument in confronting these "excesses" as affirmative action has often been in using race to overcome racism.
Passage of Proposition 209 in California does not end the policy debate, though how the measure fares in court will affect its direction. A more useful and credible way to think about affirmative action is in terms of what Eugene Bardach, a faculty member in UC Berkeley's Graduate School of Public Policy, has called a "social contribution theory for universities." It considers affirmative action as a way of "contributing to the larger social good" by trying, for example, to bring African Americans into a community that many of them find unwelcoming (admittedly, a goal that has not always been accomplished very well). As anyone having to make hard decisions has learned, affirmative action, in practice, is a matter of trade-offs between competing claims and interests. The important question is how one balances one's obligations.
Consider the most polarizing question: How much should race be taken into account in any good-faith effort to surmount the many forms of economic and social disability that afflict black Americans and other minorities? The most honest answer is that no one really knows. But, practically speaking, what is needed is what 209's supporters could never contemplate: some way of determining the relevance of race that falls between none at all and too much.
Is some degree of race consciousness never defensible? Richard John Neuhaus maintains that "if you want a colorblind society, you have to have a colorblind policy." Yet, he also understands that "sometimes, taking race into account is appropriate and necessary." What he does not tell us, however, is when that "sometimes" is. Distinctions are important. No one would favor choosing a brain surgeon or an NFL quarterback on the basis of race. But should a city police chief making an undercover assignment in the black community be completely blind to a candidate's race?
Colleges and universities present their own special concerns. If a university decides it does not want an all-white freshman class, and if it concludes that race alone will not be the decisive factor, shouldn't it be given the latitude to offer some sort of limited preference to promising black students with lower-than-the-highest SAT scores and high school grade-point averages?
But how much lower? This is not a semantic quibble. Any justification for race-conscious affirmative action in undergraduate admissions must also identify the limits of its preference policy. Policies that admit minority students who clearly lack the academic qualifications to make it to graduation should be abandoned. Yet, admissions officials need wiggle room to make discretionary judgments in selecting an unspecified number of minority students who clearly meet the institution's academic standards.
Few colleges base admissions solely on merit. Given the many different grounds on which special preferences are awarded to incoming freshmen, it is difficult to argue that any factor may be taken into account except race, ethnicity and gender. Race and gender are not necessarily trivial aspects of an individual's identity.
The important question, as University of Chicago law professor Richard Epstein has emphasized, is the "level of trade in question" in the admissions process. Are race-related preferences to be treated as if they are the same order of magnitude as geographical or alumni preferences? Or should admissions committees make a larger or smaller accommodation to race? These are the kinds of questions that should not--and cannot--be answered only in the abstract.
It must be kept in mind that the U.S. Supreme Court, in its Bakke decision of 1978, ruled that race may be a factor in college admissions, but not the decisive one. This is still the law of the land. The court has also affirmed, in Wygant vs. Jackson Board of Education, the state's "compelling" interest, with respect to higher education, "in the promotion of racial diversity" and has approved "the use of racial considerations in furthering that interest."
In seeking an alternative to race-based affirmative action, the University of California's Board of Regents has endorsed the concept of "disadvantagedness" to replace race. But economic studies have found that a variety of factors are indicators and predictors of "disadvantagedness." Race is one such variable, along with parents' income, rural vs. urban, etc. When you control for all the others, the importance of race may diminish but it does not disappear.
This is yet another confirmation of race's relevance and helps us get beyond the easy choice of "yes" or "no," as Proposition 209 would have it, when deciding concrete cases.