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"Affirmative Action and Higher Education: Before and After the Supreme Court Rulings on the Michigan Cases"
17 January 2003

Inclusion's Last Hour?: Affirmative Action Before the Bush Court

By Lawrence D. Bobo

My good friend, brother Claude Steele, has asked me to make some remarks about affirmative action by way of stimulating discussion here this afternoon. I'm happy to help stir the pot.

It is indeed a curse to live in interesting times. The past few months have been quite a roller coaster ride for those of us with progressive political leanings (and I will not attempt to hide those leanings here as I get to a few remarks in behalf of affirmative action). Where to begin? We now face a consolidated if thin Republican margin of control of both Houses of Congress and, of course, of the White House. Let me set aside the sudden resurrection and then mercifully quick departure of Henry Kissinger from the national stage. I'll skip over Trent Lott's hearty segregationist guffaw and subsequent fall from power. And, as difficult as it is to do so, let me also set aside the increasingly vicious howls from the dogs of war-our own dogs of war--assembling in the Persian Gulf even as we speak (7 more war ships left San Diego for the Persian Gulf this morning and there is talk that three more aircraft carrier groups may leave within the next few days). Instead, let's think a bit about what the Supreme Court that brought us Bush v. Gore 2000 and the current administration in Washington will now do in the case of Grutter v. Bollinger.

A few disclaimers at the outset will set the terms of my engagement this afternoon with these issues. Disclaimer number 1. I support affirmative action. I am an affirmative action baby.1 But moreover, as a social scientist, what I believe I know about the dynamics of ethnoracial inequality in the U.S. convinces me that we need policies like affirmative action, minimally, to assure steady progress toward being an inclusive and just society and, perhaps as importantly, as a check against exclusionary and discriminatory tendencies.

Disclaimer number 2. I have had no direct experience in University admissions nor higher levels of University policy-making and administration. So, my remarks do not reflect close experience of the day-to-day practices of decision-making in this arena. My fellow panelists, Nancy Cantor and Eugene Lowe, are much better equipped to offer such perspectives.

Disclaimer number 3. I also am not a legal scholar or close observer of the Supreme Court. So I cannot provide a careful reading of how each of the justices are likely to approach the case. Though, let me say that I suspect we know there are three, if not four, votes on the Court for severely narrowing if not eliminating affirmative action (i.e., Scalia, Thomas, Rehnquist and probably Kennedy).

What I have done and can say is that I have thought and written extensively about race, politics, and social inequality in the U.S.2 And the current discussion about affirmative action is, without question, centrally about the powerful intersection of the three.

With respect to affirmative action I am a believer in the old maxim that in civil rights there is no such thing as standing still. We are either moving forward or moving backward. The most recent fully comprehensive assessment of the changing status of African Americans that we have, the 1989 National Academy of Sciences Report A Common Destiny: Blacks and American Society, reached a fundamentally important but largely neglected set of conclusion. This Blue Ribbon committee, composed of over 30 scholars including John Hope Franklin, Nobel prize winning economist James Tobin, sociologists William Julius Wilson, Nathan Glazer and academy member Bob Hauser, distinguished social psychologist Tom Pettigrew, and anthropologist James Lowell Gibbs among many others, all of whom signed a unanimous report that concluded that gaps in socioeconomic status between blacks and whites have narrowed mainly under two conditions: (1) general economic growth and expansion and (2) broad gauge, government backed efforts at anti-discrimination, integration, and greater inclusion.3 I will not review the then available evidence supporting this conclusion, but I believe that at the time it represented the best consensus of social scientific thinking and that there are strong reasons to believe that the same not only holds true today for African Americans but also characterizes the experiences of many Latino and Native Americans as well. Hence, with the Bush administration, in high profile fashion, weighing-in to oppose affirmative action in higher education, the old "one step backward" phase of the civil rights cycle in the U.S. is underway again.

But I be would willing to take a even stronger position than that endorsed by the Committee on the Status of African Americans and sent out as a unanimous National Academy report. As I written extensively and discussed here at meetings at Stanford University in the past, I believe American society has moved out of the Jim Crow racism era and is in the process of becoming comfortably ensconced in a new form of systematic, institutionally and ideologically embedded racial inequality that the regime of laissez faire racism.4 The core assumption here is that, ideologically, most Americans (mainly but not exclusively white Americans) believe that discrimination is largely a thing of the past and that we now have effectively race-neutral markets and state policy. In the absence of discrimination, individuals are understood to sink or swim by dint of their own efforts and abilities. At the same time, negative cultural beliefs and stereotypes about African Americans especially but also Latinos, Native Americans, and to a degree Asian Americans remain not merely commonplace, but deeply rooted in our cultural fabric and individual psychological make-up. The end result, in the context of a still heavily segregated and unequal society, is a set of social dynamics strongly tilted toward the reproduction of systematic racial and ethnic inequality. Moving away from affirmative action is a move away from one of the principal mechanism for inclusion and social justice that we have. Just as Plessy v. Ferguson gave legal majesty to a then slowly evolving system and ideology of Jim Crow racism, we now stand on the verge of a Supreme Court ruling that, from my vantage point, may give legal majesty to the now crystallizing system and ideology of laissez faire racism: a system wherein we accept however much inequality and segregation by race that a putatively free-market and race-neutral state can allow.

Certainly President Bush's recent speech signals how Republicans intend to handle this issue. It is a matter of the "Guinier gambit," as headlines from my home town newspaper The Boston Globe, as well as those in The New York Times and in The Wall Street Journal attest5. You will recall that conservatives once labeled Clinton Justice department nominee Lani Guinier a "quota queen." In the absence of even a nano-second of serious reflection on the legal career, litigation skills, and brilliant legal mind of a senior justice department nominee Guinier's candidacy was pronounced DOA6. Bush and the Republicans are now attempting the same thing with respect to affirmative action in higher education. The Michigan plan is thus cynically and simplistically denounced as a "quota" system. To quote the President of the United States: "At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students based solely on their race."

With all due respect, I believe this is dishonest and a brazen deployment of the "race card7." The Michigan system, as I understand it, at no point ignores grades, test scores, or other considerations. The Michigan system at no point sets a rigid and fixed number or percentage of minority students to be accepted no matter what. And at no point does it allow the admission of students who are unqualified-as use of the term "quota" strongly implies. It does mean that race is taken into account among a set of considerations. The system is similar to one in which U.S. war veteran's applying for civil service positions are given additional points. This is not done as part of a "quota" for veterans, but in recognize of an important societal obligation. Bush's remarks, although calling for diversity, amount to saying that considering race in anyway amounts to unconstitutional discrimination. What progressive voices and leaders need to do and do immediately is demand clear specification of the types of "special efforts" that would be permissible for the Bush administration. Without being forced to provide such clarity the Bush administration's manipulative effort to woo independent voters and the white suburban "soccer mom's" will work. Unless their rhetoric is exposed as the thin vapor of words that it is, they will be able to claim commitment to diversity while marching into the highest court in the land and seeking to undermine one of the remaining legal bulwarks of inclusion, diversity, and social justice. The speech is a model of duplicity on the subject of race. Indeed, I now consider it to be the quintessential expression of the politics of laissez faire racism. The speech acknowledges that we used to have "segregation," with the heavy implication that this involved government action we all now recognize as wrong. It also recognizes that some prejudice and discrimination remain, but that these problems are understood mainly as the failings of individual bigots. The subtext of Bush's remarks clearly embraces the assumption that we now have markets and politics that are close enough to being color-blind that all we really need to do, to quote again from the speech, is to: "work to make college more affordable for students who come from economically disadvantaged homes. And because we're committed to racial justice, we must make sure that America's public schools offer quality education to every child from every background." And with this tilt and these words, race is once again deliberately organized out of the political discourse. It is not possible, as long experience I would hope has now taught us, to effectively deal with race by pretending it is not there. In the U.S. color-blindness is a disease not an effective political strategy.8

But, what I fear most is that it will be an effective model. I've heard Dick Gephardt and John Kerry state the need for affirmative action, and a call for some real action not just rhetoric from the Bush administration. I've heard other liberals talk of Bush jeopardizing his appeal to black and Latino voters. But only Ted Kennedy has come close to invoking the level of outrage that I think is in order. But that, perhaps, is just me: a dyed-in-the-wool Kennedy sixties liberal.

Let me move toward finishing now by sketching a few possible scenarios. The first I will call the "King's Dream" scenario. In the "King's Dream" scenario the Supreme Court not only upholds the Michigan plan as consistent with precedent under the 1978 Bakke decision, but a clear majority of the justices embrace the idea that there is a socially compelling and constitutionally viable interest in diversity in institutions of higher learning. Many of you are no doubt now thinking that I should probably have labeled this "King's Pipe Dream," since the odds against it coming to pass under this court seem very long indeed. Here it is worth recalling that even the Clinton administration argued in several cases that diversity for diversities sake alone is not constitutionally permissible. Consideration of race, they held, must be narrowly tailored and clearly advance other educational objectives. But, a good deal of evidence has been amassed about the positive effects of affirmative action, most powerfully in the book The Shape of the River by William Bowen and Derek Bok, the former presidents, respectively, of Princeton University and Harvard University. And Michigan has amassed an impressive body of evidence concerning the importance of a critical mass of minority students to minority student sense of engagement, performance, and success and on the larger good derived from experience in a multiethnic, multiracial settings.

For me, part of the reason to dwell on the King's Dream scenario is not merely that it is a possible and, from my vantage point, the preferred outcome, but mainly because liberals have to articulate a clear moral vision for what we want. The failure to have an alternative, the failure to present a vision, was widely on display in the results of the recent congressional elections. People who quibble at the margins deserve to fail. If this vision is what we want, then damn it, let's say it! Moreover, let's create the slogans that rebut the simplistic and ultimately un-American demoninzation involved with "quota-talk".9 I must confess I do not know what that new slogan is but the word "diversity" is not it. I suspect a wider array of Americans will resonate to a message of "inclusion" than to one of "diversity" for diversity's sake. Inclusion has more immediate positive connotations, it can be readily linked to an American tradition symbolized by cultural icons like the Statue of Liberty and Ellis Island, and reclaims the whole notion of "leaving no one behind." Most importantly, wedding ourselves toa term like inclusion keeps the moral and value-based claims front and center. To often, the left has settled for working behind closed doors and through administrative fiat and bureaucratic maneuver. While it is absolutely necessary that we have detailed admission plans and criteria that can be defended, there is also a much larger political project here that requires the articulation of ideas and values that resonate out there that, as Richard Nixon used to put it: "Play in Peoria." The failure to attend to this task of mobilizing political ideas and rhetoric-of making the moral and value-based case for change-- is one of the cardinal failures of the left in the post-civil rights era.

The second scenario I call the "Pretending to Mend It While Ending It Mire," which I will shorten to the "pretend but end scenario." Under the "pretend but end" scenario some subset of the Justices, presumably Justices Souter and especially O'Connor, manage to find a way to articulate an even more narrowly tailored version of the Bakke decision. That is, let's say that the court somehow produces a majority that says in a 150 point admissions rating system "race" can factor in but may count as, say, no more than 5 points rather than the current 20. So, the court throws out the Michigan plan as unconstitutional but allows a small crack in the door of considering race. Or something even more contorted may emerge where, for example, minority individuals who wish to benefit from a consideration of race have to prove that they come from segregated communities and schools, and that members of their own families have been direct victims of racial discrimination (and preferably are applying for admission to a University that has both publicly admitted to and documented a history of systematic racial discrimination in the past.). Yeah, right! While some version of "muddling through" may be where the court ends up, I actually do not consider this scenario or slight variants of it any more probable than the King's Dream Scenario.

The third and final scenario I wish to sketch I call "Ward and Abigail's Wicked Fantasy." Under this scenario, as you can easily imagine, affirmative action in higher education is effectively ruled unconstitutional. Under a strong version, a majority of the court will come close to embracing a logic that government recognition of and attention to racial designations is inherently odious under our constitution and declare that in no way does the constitution permit much less place a positive value on government action seeking "diversity" on the basis of race. It saddens me to say that I believe something close to Ward and Abby's wicked fantasy, this very ugly wet dream, is likely to come to pass. So, we had all better prepare ourselves for the howls of celebration from the Manhattan Institute, the Eagle Forum, The Center for Individual Rights and over here at Hoover Tower.

If this latter scenario comes to pass the struggle is obviously not over. We will witness a serious intensification of questioning about the SAT and other formal tests as factors in admission decisions. Discussion of how to weight an array of other life experiences in the admissions process will, likewise, be renewed. And the era of litigating against these various de facto or proxy means of recognizing race in admissions will begin. In the current context, however, it is my strong impression that few University administrators will go out on a limb with regard to creative means of recognizing race without recognizing it. More likely, is a steady diminution in active efforts at out-reach, inclusion, and social justice.

Perhaps my sense of alarm is exaggerated. Afterall, to some degree the numbers of blacks and Latinos in the UC system has slightly improved after implementing the Regents decision and proposition 209. And perhaps a move toward something like the Texas 10% plan will have the desired effects, but I am doubtful (especially since the latter depends on racially segregated communities to work and might mean admitting students of manifestly lower levels of qualification). At least, I think we should be alarmed about the prospect of a huge nation wide drop in the numbers of black and Latino students making it into the most elite public and private institutions of higher learning.

This matters. We need to be ready to move on several fronts. Not merely in terms of voting and electoral politics, and not merely at the practical, bureaucratic level of designing new admissions strategies and challenging old, counterproductive habits (i.e., reliance on standardized test scores), but also at the level of visioning and non-electoral mobilizing and fighting this thing where conservatives have for long not faced effective response: in the court of public opinion and the great struggle of ideas. If we fail to do so, rather than celebrating King's Dream we will find Ward and Abigail's Wicked Fantasy has become our lived reality.

ABOUT THE AUTHOR
Lawrence D. Bobo is the Norman Tishman and Charles M. Diker Professor of Sociology and Afro-American Studies at Harvard University. He is co-author of Racial Attitudes in America: Trends and Interpretations (1997, Harvard University Press), senior editor for the books Prismatic Metropolis: Inequality in Los Angeles (2000, Russell Sage) and Urban Inequality: Evidence from Four Cities (2001, Russell Sage), and is author of the forthcoming book Prejudice in Politics: Group Position, Public Opinion, and Wisconsin Treaty Rights Dispute.

1 Here I borrow from legal scholar Stephen L. Carter. 1991. Reflections of an Affirmative Action Baby. New York: Basic Books.
2 See Lawrence D. Bobo. 1997. "The Color Line, The Dilemma, and the Dream: Racial Attitudes and Relations in America at the Close of the Twentieth Century." Pp. 31-55 in Civil Rights and Social Wrongs: Black-White Relations Since World War II, edited by J. Higham. University Park: Pennsyvania State University Press; and Howard Schuman, Charlotte G. Steeh, Lawrence Bobo, and Maria Krysan. 1997. Racial Attitudes in America: Trends and Interpretations. Cambridge: Harvard University Press.
3 Gerald D. Jaynes and Robin M. Williams Jr (eds.). 1989. A Common Destiny: Blacks and American Society. Washington, DC: National Academy Press, especially pp. 3-10.
4 Lawrence D. Bobo and James R. Kluegel. 1997. "Laissez-Faire Racism: The crystallization of a Kinder, Gentler Anti-Black Ideology." Pp. 15-42 in Racial Attitudes in the 1990s: Continuities and Change, edited by S. Tuch and J. K. Martin. Westport, CT.: Prager; Lawrence D. Bobo and James R. Kluegel. 1997. "Status, Ideology, and Dimensions of Whites' Racial Beliefs and Attitudes: Progress and Stagnation." Pp. 93-120 in Racial Attitudes in the 1990s: Continuities and Change, edited by S. Tuch and J. K. Martin. Westport, CT.: Praeger.; and Lawrence D. Bobo and Ryan A. Smith. 1998. "From Jim Crow Racism to Laissez Faire Racism: The Transformation of Racial Attitudes." Pp. 182-220 in Beyond Pluralism: Essays on the Conception of Groups and Group Identities in America, edited by W. Katkin, N, Landsman, and A. Tyree. Urbana, IL.: University of Illinois Press.
5 All of these influential press outlets embrace the Bush language of "quotas" and unfair "racial preferences." Thus, the Globe's reproduction of the text of President Bush's speech appeared under the headline "'Michigan Policies...Amount to a Quota'" (The Boston Globe, Thursday, January 16, 2003, p. A14. The far right column of the front page of the Times ran the story as: "President Faults Race Preferences as Admission Tool, Opposes U. of Michigan, Says He Backs Diversity, buy Attacks University's Policy as 'a Quota System'" (The New York Times, Thursday, January 16, 2003, p. A1). And the Journal declared: "Bush Decries Racial Preferences" (The Wall Street Journal, Thursday, January 16, 2003, p. A4).
6 See Lani Guinier. 1998. Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice. New York: Simon & Schuster.
7 On the negative deployment of race in political campaigns, particularly by Republicans and others on the right see Donald R. Kinder and Lynn M. Sanders. 1996. Divided by Color: Racial Politics and Democratic Ideals. Chicago: University of Chicago Press; and Tali Mendelberg. 2001. The Race Card: Campaign Strategy, Implicit Messages, and the Norm of Equality. Princeton, NJ.: Princeton University Press.
8 While there is a long tradition, including in many liberal and progressive quarters, of "denial of race" I believe the main legacy of this strategy is political failure and enduring mistrust across the lines of race. Concerning the debate on the left see J. Phillip Thompson 1998. "Universalism and Deconcentration: Why Race Still Matters in Poverty and Economic Development." Politics & Society 26: 181-219. and generally see Lani Guinier and Gerald Torres. 2002. The Miner's Canary: Enlisting Race, Resisting Power, transforming Democracy. Cambridge: Harvard University Press.
9 To be sure, liberals will also have to be direct about the costs and trade-offs involved with pursuit of affirmative action policies, as I have argued elsewhere, see Lawrence D. Bobo. 2000. "Race and Beliefs about Affirmative Action: Assessing the Effects of Interests, Group Threat, Ideology, and Racism." Pp. 137-164 in Racialized Politics: The Debate on Racism in America, edited by D. O. Sears, J. Sidanius, and L. D. Bobo. Chicago: University of Chicago Press. The key issue is to stress the large social obligation and social good in seeking fairness.