Posted By admin on July 28, 2021
White establishment liberals of Conants generation almost never considered race when they thought about the American future. In the summer of 1948, Henry Chauncey, an assistant dean under Conant who became the first president of the Educational Testing Service, was stunned to read an article co-written by one of the most prominent Black academics in the country, the anthropologist Allison Davis, who argued that intelligence tests were a frauda way of wrapping the privileged children of the middle and upper classes in a mantle of scientifically demonstrated superiority. The tests, he and his co-author, RobertJ. Havighurst, pointed out, measured only a very narrow range of mental activities, and carried a strong cultural handicap for pupils of lower socioeconomic groups. Chauncey, who was convinced that standardized tests represented a wondrous scientific advance, wrote in his diary about Davis and Havighurst, They take the extreme and, I believe, radical point of view that any test items showing different difficulties for different socioeconomic groups are inappropriate. And: If ability has any relation to success in life parents in upper socioeconomic groups should have more ability than those in lower socioeconomic groups.
But that thought contradicted Conants assurance that the American radical he wanted to put in charge of the country would be a fanatical believer in equality, committed to wielding the axe against the root of inherited privilege. As the civil-rights movement grew, universities wanted to integrate more seriously, and standardized tests complicated their commitment. Testing made it possible to create a numerical ranking of all applicants, which helped enormously in handling the crush at the gates of selective institutions. Yet there had always been substantial average Black-white gaps in test scoresa reflection of the divergent quality of education and other resources in the lives of Black and white Americans. Conants efforts had resulted in greatly increasing the importance of tests, but the enhanced integration, beginning in the nineteen-sixties, of Harvard and other colleges and universities required decreasing their importance.
By the early nineteen-seventies, rejected white applicants at a number of universities were beginning to suecharging that the schools had engaged in reverse discrimination. The plaintiffs based their legal arguments on two landmarks in the countrys historic quest for racial justice, the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1964, both of which forbade racial discrimination. Those measures were aimed at helping Black people, but, the plaintiffs argued, they applied equally to white people who had been rejected even though their test scores were higher than those of admitted Black applicants. In these lawsuits, admissions based on standardized test scores had risen to the level of a constitutional right.
The first celebrated white litigant against an affirmative-action program was Marco DeFunis, who had been turned down by the University of Washingtons law school. In 1974, the Supreme Court declared DeFuniss case moot because a lower court had ordered that he be admitted to the law school, and by the time the Court ruled he was close to graduating. Supporters of affirmative action were worried. Mainstream Jewish organizations, seeing affirmative action as a possible harbinger of a return of Jewish quotas at universities, took DeFuniss side. Alexander Bickel, of Yale Law School, one of the countrys most prominent legal scholars, co-wrote an anti-affirmative-action friend-of-the-court brief for the Anti-Defamation League. The sociologist Nathan Glazer wrote a book called Affirmative Discrimination. The Supreme Courts most theatrically liberal white member, WilliamO. Douglas, wrote a solo opinion that treated affirmative action as unconstitutional. The Fourteenth Amendment, he wrote, commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The feeling that issues involving race had obvious solutions, which had prevailed at the Court in 1954, had evaporated. Justices were predisposed to see affirmative action as presenting a bewildering conflict between two competing values: the impulse to integrate universities and the impulse to organize admission as an open competition in which each individual applicant would be judged solely on the basis of grades and test scores.
David Oppenheimer is a veteran law professor who teaches at the law school of the University of California at Berkeley. According to family legend, his paternal grandparents, who were not acquainted, were so upset by the release of The Birth of a Nation, in 1915, that they separately wrote to BookerT. Washington to ask what they could do about itand he introduced them to each other. As Oppenheimer sees it, the cause of racial justice is responsible for his existence.
Everything about affirmative action and the lawand, today, much more about race relationshinges on one word: diversity. The word comes from a decision by Justice Lewis Powell, the first of the moderate Republican-appointed swing Justices, in a 1978 case, Regents of the University of California v. Bakke, about admission to the medical school at U.C. Davis. The medical school had rejected Allan Bakke, a white student, and had set aside sixteen places for minorities in its entering class of a hundred. The Court disallowed the program, which, in the language of opponents of affirmative action at the time, was called a quota. Powells decision made diversity the only permissible justification that a university could use in increasing its cohort of Black students. It had to be able to demonstrate that the intent was to create an intellectually richer environment on campus, not to address racial discrimination in society.
Oppenheimer, like many civil-rights lawyers, was frustrated with the use of diversity as the sole legal foundation for such an important issue. (The philosopher Elizabeth Anderson, in a 2010 book, The Imperative of Integration, listed four possible models of affirmative action: to compensate Black people for past harms, to generate diversity, to prevent discrimination, and to achieve integration.) Considering diversity to be the only permissible model appears to regard greater numbers of Black students on campus primarily as a way to broaden the experience of white students, and it fails to recognize the historical debt the country owes to Black people. Oppenheimer decided that, if he could unearth diversitys source, something crucial about race, education, and the law in America might be revealed.
The Bakke case framed affirmative action for decades. By the late seventies, admission to higher education had become a national obsession, and race had always been a national obsession. The case drew intense public attentionThe Atlantic Monthly ran a cover story about Bakke titled The Issue Before the Court: Who Gets Ahead in America? There were more friend-of-the-court briefs filed than in any recent Supreme Court case. On the day the Bakke case was argued, people lined up for hours hoping to get a seat.
Powell assigned one of his clerks, Robert Comfort, to draft a bench memo summarizing the casemaking clear his initial inclinations. Comfort, who is now retired after a career as a tax lawyer, told me, when we spoke not long ago, In Powells view, the best result was to preserve affirmative action in some form. He said, I want to find a middle ground. My client, the country, needs for this to be the result. How do we get there? Powell hated the medical schools system of explicitly reserved places for minority applicants. Comfort said, Powell thought that was offensiveto let politics decide how to cut up the melon.
Four Justices were willing to support U.C. Davis. If the case had arrived a few years later, John Paul Stevens, who was moving left, might have provided a fifth vote. Powells biographer John Jeffries has written that Powell realized how far the Justices really were from reaching a natural consensus when Thurgood Marshall, a liberal and the Courts only Black Justice, said in conference that some form of racial recompense would be necessary for the next hundred yearsit would take that long to heal the wounds left by the countrys racial history. This remark left Powell speechless, Jeffries writes, giving him a sharpened sense of the vast gulf that separated him from the liberals.
So Comfort had to devise an argument for keeping affirmative action while limiting the open use of race in admissions. He burrowed into the friend-of-the-court briefs. There were a lot of really bad briefs, he said. But one stood out: the Harvard brief, as Comfort described it, which focussed on diversity. Comforts memo to Powell said, Educational DiversityThis seems to be the step in the analysis offering the best opportunity for taking a middle course. Powell wound up being assigned to write the majority opinion in the Bakke case, and he quoted heavily from the Harvard brief, which three other leading universities had signed. Harvard had originated admissions by standardized tests, and now it offered diversity as a justification for affirmative action. From within the institution, those two positions didnt seem contradictory, because they had in common a large social ambition and an insistence that Harvard be permitted to decide whom to admit without having to adhere to any one externally required standard.
Years later, when Oppenheimer began his search for the origin of diversity, the idea had become ubiquitous. It was the basis of all subsequent Supreme Court decisions, and it became one of the stated principles underlying the admissions policies of essentially all universities, and a goal widely adopted, at least rhetorically, in corporate America, in the arts, in the military, and elsewhere. Oppenheimer assumed that the term had originated in the legal world, but it had never previously appeared in any court decision or piece of legislation that he could find. He discovered that, in the DeFunis case, Harvard had submitted two friend-of-the-court briefs to the Supreme Court, but the one that focussed on diversity hadnt entered the standard legal databases.
The principal author of this brief was Archibald Cox, a Harvard law professor who had recently been fired from his position as a special prosecutor in the Nixon Administration during the Watergate Saturday-night massacre. When Cox returned to Cambridge, in 1973, Harvards new president, Derek Bok, asked him to write the brief. (Cox, a generation older than Bok, had been a mentor when Bok was a young member of the Harvard Law School faculty.) A few years later, during the Bakke case, Bok sent his general counsel to persuade the University of California to let Cox argue on its behalf before the Supreme Court.
Only one person who signed the brief with Cox is still alive: James Bierman, a Washington lawyer who was a twenty-eight-year-old assistant dean at Harvard Law School, working in the admissions office, when Cox asked him to write a first draft. Before affirmative action, Bierman told me, a typical law-school class had only four or five Black students out of more than five hundred. We had to do something deliberately, because of racism in this country, he said. You have an applicant pool where the objective numbers for Blacks and whites do not look the same. How do we justify accepting someone with a lower LSAT score? He took language from a report that the Harvard undergraduate-admissions office had produced in 1960 about how it selected students, which mentioned the goal of creating a student body that would include people of different talents and backgroundsincluding a hypothetical Idaho farm boy. (One of Harvards admissions deans was himself a former Idaho farm boy.) This absolved Harvard from applying a single academic standard to all applicants, and allowed it to add racial diversity to the list of qualities the university was looking for. In Comforts memo to Justice Powell about the Bakke case, next to the passage where Comfort brought up diversity, Powell jotted down, This is position that appealed to me in DeFunis.
Oppenheimer was still unsatisfied. Surely the concept of diversity must have specifically racial roots. As he kept looking, he came across what he considers the Rosetta stone of the Supreme Courts jurisprudence on affirmative action, which in turn generated our current understanding of the word diversity. It is a slim book, published in 1957, titled The Open Universities in South Africa. At the time, two South African universities conducted integrated classes, but the apartheid government was preparing legislation that would force them to segregate. Officials from the integrated universities, the University of Cape Town and the University of the Witwatersrand, organized an opposing campaign. South Africas integrated universities, the book says, believe that racial diversity within the university is essential to the ideal of a university in a multi-racial society. It goes on, Nowadays it is almost axiomatic that a university should be more diverse in its membership than is the community in which it exists. This diversity itself contributes to the discovery of truth, for truth is hammered out in discussion, in the clash of ideas. The book presents diversity as a justification for racial integration, and places the issue in the context of universities historic claim to academic freedom and protection from political interference.
Oppenheimer discovered that T.B.Davie, the principal of the University of Cape Town, had received a grant from an American foundation to travel to the United States and talk to prominent educators about the material that would appear in the book. Davie visited Harvard Law School and met with the dean, Erwin Griswold. Oppenheimer located a diary that Davie kept during his trip, in which he wrote that he and Griswold had discussed race and academic freedom.
Albert van der Sandt Centlivres, the Chief Justice of South Africa and the chancellor of the University of Cape Town, also got a travel grant from the foundation. He met the Supreme Court Justice Felix Frankfurter, who quoted at length from the Open Universities book in his opinion in a 1957 free-speech case. (Harvards briefs in the DeFunis and Bakke cases quoted from Frankfurters opinion, and so did Robert Comforts memo to Powell.) Frankfurter was a former Harvard Law School professor, still very much in touch with his erstwhile colleagues; Archibald Cox was a former student and protg of Frankfurters. Oppenheimer found a letter of solidarity sent to Centlivres by nineteen faculty members at Harvard Law School, Cox among them. Oppenheimer concluded that, long before the DeFunis and Bakke cases, Cox had encountered and embraced the idea that universities should pursue racial diversity.
Oppenheimers discovery left him more kindly disposed to diversity. He now regards it as a way of placing affirmative action at the center of a project, dating back centuries, of protecting the universitys sacred place in the world, so that it has the right, in the words of the Open Universities book, quoting Davie, to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. The constant invocation of diversity today by many American institutions underscores how influential universities can be. In the immediate aftermath of the Bakke decision, Oppenheimer says, not much attention was paid to the wordits inherent power has been demonstrated only over time.
Diversity, though, hasnt converted the entire country. Most of institutional Black America would have preferred that the Supreme Court had simply endorsed the University of Californias policy of reserving places for minority applicants. After the decision, the headline in the Amsterdam News was BAKKEWE LOSE! Powells decision in Bakke insisted that any use of race in admissions be subject to strict scrutiny, meaning that it would be presumed to be unconstitutional unless universities could offer an extraordinary justification. Many white liberals saw affirmative action as a temporary fix, a bridge to take the country from its racist past to its nonracist future. The Bakke case came as a relief to them, because it preserved affirmative action without resorting to quotas. It wasnt designed to remake the country. It was a compromise.
Future lawsuits and other attacks were inevitable as long as diversity was seen as the only permissible justification for affirmative action, because it doesnt specify that programs explicitly favoring Black people are acceptable. A California ballot initiative in 1996 proposed banning the state government from using race as a factor in employment, contracting, and education, including in universities. It passed by a wide margin, and most other such political efforts have been successful. Last fall, the voters of California, a state with a majority minority population, supported Joe Biden over Donald Trump by a nearly thirty-point margin, but they decisively rejected a ballot initiative to reinstitute race-based affirmative action. A Pew poll in 2019 found that nearly three-quarters of Americans, including sixty-two per cent of Black Americans, oppose using race as a factor in admissions decisions. But in a Gallup poll conducted the year before, in which affirmative action was not precisely defined, more than sixty per cent of Americans said they were in favor of it.
The legal justification for affirmative action dances around the obvious fact that it was a direct result of the civil-rights movement, aimed at racially integrating universities. This approach generates a good deal of cognitive dissonance. Jamal Greene, a professor at Columbia Law School, writes in his new book, How Rights Went Wrong, that the Supreme Courts distaste for overt race-conscious admissions plans...means that instead of forthrightly acknowledging structural racial inequality and tailoring their programs to the metes and bounds of that special social problem, schoolswith the Courts blessingpursue racial justice in the shadows. Schools claim that they take race into consideration only as part of their efforts to achieve diversity, not because they want to become more racially integrated. Greene writes, This isnt quite hogwash, but its closemeaning that universities pursue racial diversity much more ardently than other kinds of diversity. Diversity, taken literally, isnt what they are really after.
The outcomes of the next Supreme Court cases, in 2003, Grutter v. Bollinger and Gratz v. Bollinger, support Greenes point. The Court rejected an explicitly numerical affirmative-action policy at the University of Michigan by a 63 vote, but accepted, by a 54 vote, a policy at the law school that was based on qualitatively evaluating all the applicants. Universities that use standardized tests and also have affirmative-action policies prefer to avoid being statistically specific about the extent of their commitment to affirmative action, which is partly because of the direction in which the Supreme Court has pushed them. A study published in 2009 by two sociologists, Thomas Espenshade and Alexandria Walton Radford, estimated that at selective private colleges being Black is the equivalent of adding three hundred and ten points to the SAT score of a white applicant. At Harvard, according to documents produced for the current lawsuit, average SAT section scores of accepted Black applicants were sixty-three points lower than those of accepted Asian American applicants.
Standardized tests provide opponents of affirmative action with hard evidence of exactly how race-conscious admissions are. Peter Arcidiacono, an economics professor at Duke, was an expert witness for the plaintiffs in both the Harvard and the University of North Carolina cases. He told me that he would prefer that universities be made to reveal the test scores of their accepted applicants by race, as the lawsuits have forced them to do. If they were more transparent, he told me, they might work harder to make sure Black students achieve, and to shift the focus of national attention away from college admissions and toward the racial disparities in high-school education. In real life, though, when tests become a more obvious factor in admissions, the Black presence decreases. The number of Black students enrolling at Berkeley dropped by nearly fifty per cent the first year that Californias anti-affirmative-action initiative was implemented. Arcidiacono estimates that if the Supreme Court takes the Harvard case and finds for the plaintiffs that number will drop by two-thirds.
Affirmative action has always been racially motivated, and it has produced the intended result: universities have become significantly more integrated. That has helped to increase racial integration, from a very low baseline, in the places where a degree from such universities is a meaningful credentialcorporate America, Wall Street, Silicon Valley, and so on. Members of the Black lite often reflect ruefully that affirmative action helped them get into Ivy League schoolsand generated annoying perceptions about thembut they also note that it has created a Black leadership class that hadnt previously existed. David Garrows biography of Barack Obama says that when Obama applied for membership in the Harvard Law Review, he declined to check the box indicating his raceand that one reason he joined was to demonstrate that he hadnt been admitted to Harvard Law School because of affirmative action. Nevertheless, he has staunchly defended affirmative action throughout his career.
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Can Affirmative Action Survive? - The New Yorker
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