Writing in The Wall Street Journal’s Opinion Journal, Abigail Thernstrom wrote, concerning the Supreme Court’s decision in Ricci v. DeStefano, the New Haven firefighter’s discrimination case:
Second Circuit judge, José Cabranes, properly posed the broad constitutional question at issue: “Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that ‘too many’ applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set-aside?”
Unfortunately, only Supreme Court Justice Antonin Scalia addressed this issue — and only briefly. “The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them,” he concluded.
Hat tip to Donald Douglas.
This brings me to another article, which I also heard about due to Dr Douglas, from Fred DeBoer, in which he concluded:
I am afraid for my country. This country has a permanent black underclass; Hispanic economic mobility is not much better. Decades of affirmative action have done little to fix that. Now, we appear ready to abandon those attempts to level the playing field entirely. Of course, principles and ideals are important. But my question is open, and I apply it to the most thoughtful opponents of affirmative action and the most rabid and unthinking alike: what are the effects, for our country, of a permanent racial achievement divide? And can we reasonably expect to maintain a peaceful and just society with such a gap between the races?
And how long can we continue to pretend that these questions aren’t staring us in the face, or that they don’t matter?
Such a question could have been asked by a neutral observer, but Mr DeBoer makes no claim to being neutral: he is very much in favor of Affirmative Action, or something to equalize the races in America. He wrote:
In light of the decision by the Supreme Court in the now-famous New Haven firefighters case– or, rather, the decision by our country’s ruling philosopher king, Anthony Kennedy– I think we need to pause and consider effects in addition to principle when it comes to affirmative action and what it has meant for the preservation of a multiracial society. This, incidentally, was part of the appeal of the Slate piece on the case that Mark rightly praised.
Consider, for example, the abolition of racial preferences in the University of California system in 1996. We can talk about the principles involved, and we have, ad nauseum, as a public discourse. But what about the effects? In the UC system, the effects have been dramatic: black and Hispanic students are significantly underrepresented in comparison to their numbers in the state generally. That effect may not play out in the same way throughout the country, if racial preferences are done away with en masse. But I see no reason to suppose that they wouldn’t, and California, our most populous state (and one of the most racially diverse) would seem to be an ideal test case. The results have been dramatic, and they have been scary, if you believe that society has a vested interest in maintaining something resembling equity between the races, in terms of income, in terms of education, and in terms of social mobility. The Ricci case threatens to do for the country’s job market what the UC decision has done for California’s university population. And even if we can draw no conclusions about Ricci’s larger effects on employment, surely, the stark racial divides in California in regards to college education should give us pause, as (controversial or not) the college premium exists, and has a great deal of salience for any individual’s earning potential and access to socioeconomic mobility.
This is important, because Mr DeBoer entitled his article “What about effects?” Mr DeBoer is very concerned, as our many of our friends on the left, with the societal and cultural effects of abandoning Affirmative Action, yet he conceded that, over almost four decades of Affirmative Action being used, “this country has a permanent black underclass; Hispanic economic mobility is not much better. Decades of affirmative action have done little to fix that.”
It seems a rather obvious question: if Affirmative Action has been so ineffective in fixing the problems it was meant to address, why would we continue with it? In her majority opinion in Grutter v Bollinger, 539 U.S. 306 (2003), now retired Associate Justice Sandra Day O’Connor concluded:
We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317—318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
That was six years ago; we have 19 years left before the date the Grutter majority “expect(ed)” that the use of racial preferences would no longer be necessary.
Which brings us back to Ricci v. DeStefano. Reading through Associate Justice Ruth Bader Ginsburg’s strong dissent, I find page after page after page disagreeing with the reasoning of the majority opinion by Associate Justice Anthony Kennedy, and Associate Justice Samuel Alito’s concurring opinion, and I found a great deal about why the now overturned decision of the city of New Haven did not constitute an improper discrimination in violation of the Equal Protection Clause, and how the test discarded by the city might have been discriminatory, but nothing at all about the actual effectiveness of Affirmative Action.
I wish here to set aside completely arguments concerning whether Affirmative Action and racial preferences violate the Equal Protection Clause. The Supreme Court has said, in effect, that such policies do not necessarily violate Equal Protection, depending on how they are structured and whether there is a compelling government interest in doing so. (The companion cases of Grutter and Gratz v Bollinger offer some guidance: absolute quotas are forbidden, but some consideration of race is allowable.) What I wish to ask is: has and does Affirmative Action actually work to achieve the ends its proponents, and the Grutter majority, held were good and compelling government interests.
I hold that it has not. In Ricci, we had a case in which the city of New Haven tried to have written a promotion eligibility test for firemen. The very best was done to insure that it was not somehow racially discriminatory, yet, when the tests were scored, white applicants did significantly better than minority test takers. The case at hand is hardly an isolated one: the Gratz and Grutter cases turned on the same things: on standardized measures, white applicants outperformed minority candidates. As these examples go on and on, despite many, many attempts to produce completely race-neutral tests, isn’t it reasonable to question whether our efforts at helping minorities before they even get to the test taking stage have been ineffective?
Affirmative Action is, in effect, a program that is intended to bandage an already-inflicted wound. It seeks ways to help minority candidates who are less competitive with white applicants achieve equal outcomes. But it seems to me that the program should be far less about helping the already-behind candidates get ahead than it should be about keeping minorities from getting behind in the first place. It shouldn’t be about adjusting the scores of minorities who underperform on some form of application test than it should be about enabling them to perform equally in the first place.
The simple answer is: throw more money at public schools. If that had actually worked, we wouldn’t be having this discussion now.
The ball’s in your court, people; give us ideas.