It has been a time of doomsaying for supporters of affirmative action. In May, the University of California’s Boalt Hall Law School revealed that its black enrollment had fallen 81 percent last year, following a 1995 decision of the state university system’s board of regents not to take race into account for college admissions. The University of Texas Law School showed a similar drop after abiding by the 1996 Hopwood decision, which found Texas’s system of racial preferences unconstitutional. Anthony Lewis of the New York Times bemoaned a world in which UT profs would be “teaching Brown v. Board of Education with no blacks in the classroom.” And President Clinton, in his June race-relations speech at the University of California, San Diego, warned that “minority enrollments in law school and other graduate programs are plummeting for the first time in decades.”
What are they complaining about? Affirmative action has taken a few hits, but that’s it for now. Outside of elite schools in Texas and California, minority enrollment isn’t “plummeting”: Its rate of increase has merely slowed. And affirmative action faces no threat, large or small, from any legislature anywhere — even in states where Republicans control both houses and the governor’s mansion. At the federal level, Newt Gingrich has endorsed the Hatch-Canady bill to end affirmative action, but he does not intend to act on it until next year at the earliest. At present, says Gingrich, “We need 80 percent of our effort on proving we have found a better way to solve the problem and 20 percent of our effort on ending affirmative action.”
This is an indication that Republicans are not only losing the momentum on affirmative action, they’re losing the argument, too — and in an extraordinary way. In a deft bit of political jujitsu, affirmative action is being defended most vigorously in the name of a principle that has always been used to attack it: meritocracy.
If affirmative action is wrong because it isn’t meritocratic, the defenders of the status quo say, then let’s get rid of some of your preferences and see how you like it! Friends of affirmative action are getting a lot of mileage out of three particular meritocratic arguments: attacks on alumni preferences at colleges, attacks on athletic scholarships, and calls for ” class-based” affirmative action. President Clinton tried to bring them all together in his San Diego speech: “There are those who argue that scores on standardized tests should be the sole measure of qualification for admissions to colleges and universities,” he said. “But many would not apply the same standard to the children of alumni or those with athletic ability.”
The attack on alumni admissions was first broached by the Washington Monthly magazine in the early 1990s and had its fullest exposition in Michael Lind’s 1995 manifesto The Next American Nation. Lind, who himself opposes affirmative action, posits the existence of a “white overclass” and argues: “Members of the white overclass in the United States tend to avoid criticism of racial preference in higher education, and with good reason: their own sons and daughters often benefit from an even more extensive program of favoritism based on ancestry. . . . The best-kept secret in the United States is this: legacy preference in college admissions is by far the biggest affirmative action program.” Lind notes that a fifth of Harvard’s students are “legacies” — the children or grandchildren of alumni – – and according to a study of one Ivy League campus, freshman legacies had an average SAT score of 1,280, compared with 1,350 for all freshmen.
This may all be true, but it is also true that the degree of unfairness in alumni admissions is dwarfed by the degree of unfairness in race-based affirmative action. Contrast the 70-point Ivy League SAT difference Lind cites with the differential between black and white scores at any major university. The median difference is 180 points, and some universities have gone far higher, including a 288-point gap at Berkeley before 1995. At Rice University, the SAT gap between blacks and Asians reaches 341 points. Thus, to call legacy preference in college “by far the biggest affirmative action program” is rather like calling parking violations “by far our largest crime problem” — there may be more illegal parkers, but they are far less damaging to the polity than most criminals.
Besides which, alumni preferences are voluntary. When universities undertake them (in hopes of corralling contributions, of course), they are knowingly paying a price in the caliber of their student body. This is not true of affirmative action; it is not voluntary, especially under the terms of the 1991 Civil Rights Act, which allows plaintiffs to find discrimination based on numerical representation.
Even so, the anti-legacy argument has proved a successful one, in part because everyone who isn’t a legacy remembers how unfair it felt to hear that other kids had an advantage over him in college admissions due to their parentage. And this, in turn, explains why affirmative-action proponents love the argument so much: They accept the argument that, in essence, their skin color gives white children an inherent and unfair advantage over black children and that the only remedy for that is to force the scales of justice more in the direction of blacks.
The anti-legacy argument has sent affirmative-action foes into a defensive scramble. Ward Connerly, point man for California’s anti-affirmative-action Proposition 209, is a case in point. “I oppose alumni preferences, I oppose preferences based on somebody who makes a big contribution, based on who’s the son of an ambassador,” Connerly says. If an elimination of alumni preferences were the next step in the battle against affirmative action, Connerly says, “I would strongly support that. Those are preferences that have nothing to do with merit.”
Indeed, Connerly is so committed to the principle of meritocracy that he is glad to apply it to schools’ athletic programs: “Merit is not just how well you’ve done on an exam,” Connerly says. “You can give preference to athletes and still be consistent with meritocracy. Athletes can merit admission if your objective is to build a great football team. The modern college is no longer just a scholarly environment.”
The idea that merit, broadly construed, should trump all other considerations is not limited to Connerly. The closest thing thus far to Gingrich’s unattained (and perhaps meant-to-be-unattainable) “alternative” to affirmative action is “class-based affirmative action,” or, as Bob Dole advocated it in the closing days of his campaign last year, “needs-based preferences.” This fits into the growing, litigation-inspired assumption that the trials of life should be evenly distributed among citizens, and that the public square should be as “fair” as a standardized test. You can’t have a real meritocracy, the theory goes, unless everyone has exactly the same opportunities.
The starting point for this argument was Lyndon Johnson’s 1965 speech at Howard University, in which he drew a metaphor for remedying racial discrimination. Johnson said, “You do not take a person who, for years, has been hobbled by chains, and liberate him, bring him up to the starting line of a race, and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair.” The speech is correctly seen as the founding document of affirmative action, and it’s an argument that can be adapted to justify affirmative action based on anything. It was carried to its logical conclusion in Richard Kahlenberg’s 1996 book The Remedy: Class, Race and Affirmative Action, in which the author makes the case for an affirmative-action program based on ” class” (although Kahlenberg uses the word not to describe class in any traditional sense but as a synonym for “wealth”). Affirmative action, Kahlenberg writes, “should not be discarded but should be revamped so that preferences in education, in employment, and in government contracting are provided on the basis of class, not race or gender. . . . Because of our nation’s history of discrimination, minorities are disproportionately disadvantaged and would disproportionately benefit from such redirected efforts.”
Kahlenberg is a liberal, but many conservatives have taken to the idea like ducks to water. In the last days of June, Gingrich explained his “nuanced” affirmative-action policy on Evans & Novak. He’s against bad affirmative action, but for good affirmative action, with class preferences falling under the latter heading. “I believe that quotas and set-asides are wrong and should be repealed,” Gingrich said. “I also believe that poor children of any ethnic background in any neighborhood in America deserve a helping hand, to have a really honest, fair chance to pursue happiness, as we promised them in the Declaration of Independence.”
Connerly himself told the Atlanta Journal & Constitution that he seeks class-based affirmative action. “The problem is not black and white,” Connerly says. “It’s the haves and have-nots.” Such a program, as envisioned by Kahlenberg, would wind up bringing an “acceptable” number of blacks into institutions without looking at race, which is only another way of saying it would replace explicit with implicit racism. What’s more, the program is on its face scarcely distinguishable from socialism. (In fact, in America, it may be the only practicable form of socialism, if we accept Robert Skidelsky’s assertion that regulation is “perhaps the characteristic form of collectivism in the United States.”)
It seems that every conservative attempt to dismantle affirmative action results in an equal and opposite statist reaction — from Republicans. A particularly risible example came in Texas in June, when Gov. George W. Bush promised to sign a bill sponsored by two black legislators, angry at declining black enrollment at UT Law School, that would eliminate publicschool athletic scholarships. The logic — such as it is — seemed to be that if Texas won’t discriminate in favor of blacks in areas where they lag, it shouldn’t be allowed to be meritocratic in areas where blacks excel.
There’s no doubt that affirmative action undermines meritocracy. But that has always been a secondary objection, a distraction from the central issue: that affirmative action denies freedom of association, and that it counts by race in the first place. As Terry Eastland, author of Ending Affirmative Action, puts it, “We didn’t fight a Civil War over alumni preference.” But liberals have made a great political discovery, if hardly a great logical one: As long as the meritocratic chimera is mistaken for the heart of the matter, making do with affirmative action is going to look more attractive than doing without it.
Christopher Caldwell is senior writer at THE WEEKLY STANDARD. His column, “Hill of Beans,” appears weekly in the New York Press.
