The Negative Side of Affirmative Action

Editor’s Note: Larry Purdy was one of the trial lawyers who represented the plaintiffs in the University of Michigan lawsuits decided by the U.S. Supreme Court in 2003, Grutter v. Bollinger and Gratz et al. v. Bollinger. He is the author of Getting Under the Skin of Diversity: Searching for the Color-blind Ideal.

For many years I have been immersed in the debate over “affirmative action” or, to be more precise, race preference admission policies employed by many elite colleges and universities. Thus, I was curious whether a new book favoring such preferences would advance new arguments or challenge my long-held opposition to them.  Unfortunately, Affirmative Action for the Future by Notre Dame’s James P. Sterba did neither.

However, let me begin by acknowledging that Professor Sterba deserves praise.  In his effort to defend the use of racial preferences in university admissions and elsewhere throughout society, he no longer dodges the truth behind the goals sought by proponents of affirmative action. Indeed, after paying lip service to the original meaning of the phrase first coined by President Kennedy in a 1961 executive order—designed to eliminate rather than add race as a factor in government contracting and hiring—Sterba offers to honestly redefine affirmative action

. . . as a policy favoring qualified women, minority, or economically disadvantaged candidates over qualified men, nonminority, or economically advantaged candidates respectively . . .  (emphasis added)

While Sterba deserves an “A” for accurately describing—in the context of race—how most so-called affirmative action plans have in fact functioned over the past four decades, he deserves a much lower grade for his proposed solutions to the alleged problem of societal imbalances. His focus is on group as opposed to individual rights. The question is whether there is any fair way to re-engineer these perceived imbalances by resorting to the use of group identities while at the same time remaining loyal to the bedrock American principle of guaranteeing equal treatment to each individual.

Among Sterba’s proposed solutions, of course, is one against which most Americans would recoil: In essence, imposing strict “reservations” or quotas. According to Sterba, that is what they do in India, Malaysia, and South Africa, so why not here?  But it goes without saying that formally adopting policies where “race matters” is thoroughly contrary to our shared goal of creating a colorblind society. In the end, how can any American with even the scantest knowledge of our nation’s racial history advocate such a thing?

Sadly, Sterba seems to view white Americans as possessing a hard-wired inability to treat their non-white brothers and sisters fairly. Although he begins Chapter 1 with a survey showing “that white Americans overwhelmingly ascribe to principles of racial equality and integration,” that assessment is short-lived. In the pages that follow, Sterba proceeds to catalogue a litany of alleged societal inequities, after which he snidely implies that any suggestion that white Americans ascribe to racial equality must be “mistaken.” From that point forward, at least in Sterba’s mind, the case appears closed; and presumably it will take a decades-long period of imposing retributive race preference policies in order to overcome the imbalances he attributes to white Americans’ alleged discriminatory behavior. (No word on whether non-whites and/or women are afflicted with this same disease. And no word on how the institutionalization of race and gender preferences is expected to cure it.)

Throughout Sterba’s book, one overriding theme seems to be that 21st century white Americans share racial attitudes little different from those held by 18th and 19th century Americans. In fact, he flatly asserts that white Americans today remain guilty of all manner of “ongoing injustices” to non-whites; and he implies that white males in particular are guilty of injustices to everyone who isn’t white and male. With no hint of irony, Sterba suggests that atonement can be achieved “in part by endorsing affirmative action programs.”

Sterba notes that it is “important to document the level of racial and sexual discrimination that [still] exists in the United States.”  Indeed, he labors hard to prove that such discrimination remains “widespread,” presumably to justify his claim that race and gender preference polices offer necessary redemption for these ongoing sins. Yet Sterba’s documentation is weak at best. And an example of his unseriousness is illustrated by his assertion that institutions should “cut back on . . . athletic preferences, which now benefit wealthy white applicants to elite colleges and universities.”  Without conceding the merit of his argument, in which he vainly attempts to compare race preference policies to a school’s desire to attract talented athletes, I suspect a survey of Sterba’s Notre Dame campus would disabuse him of the notion that “wealthy white” applicants benefit more than, say, applicants who are neither wealthy nor white when it comes to the preferences given each year to Notre Dame’s scholarship athletes. Nevertheless, it is of a piece with Sterba’s view that nearly all of society’s injustices are directly traceable to white folks.

Throughout his book, Sterba confronts the reader with the familiar strawmen of the left: America is a racist nation; minorities and women are, to this very day, routinely discriminated against; and unless majority applicants are penalized in various competitions solely because of their race, there never will be full equality in this country.  Interestingly, Sterba makes little mention of the highly successful minority Asian students who today are significantly—and deservedly—overrepresented on many elite campuses based on their excellence when measured against standard admissions criteria.  And contrary to his suggestion that absent these race preference policies, whites will dominate and minority students will disappear from elite campuses, one need only look at the undergraduate enrollment figures at two preeminent flagship universities, UC Berkeley and UCLA, where race preference polices have been banned for well over a decade, to see that that is not the case.

In the end, Sterba’s argument in favor of policies where “race matters” is unlikely to appeal to the vast majority of Americans who do not spend their days measuring individuals as products of their race. That Sterba chooses to promote such polices that needlessly divide us on the irrelevant basis of skin color is a shame, for they do nothing to advance the goal of living and working together as Americans in a colorblind society.

Though he no doubt intends otherwise, if Professor Sterba has his way, such a society will not soon, if ever, materialize.