Unexplored Tributaries

Richard Epstein from the February 1999 issue

(Page 2 of 2)

Which leads to the other portion of the affirmative action debate that Bowen and Bok ignore in their study: What is the proper role for affirmative action in the hiring of faculty? Here the stakes of any single decision are surely higher than with the admission of individual students. Faculty members often engage in research--cutting-edge research in the leading institutions of higher learning. What chances are there that some applicant who has been boosted by one or two affirmative action programs can compete with other faculty members who have survived a rigorous winnowing process at every stage of their professional development?

It is not only research that is at stake. It is also teaching. Weaker students can receive remedial education or outside tutoring. They can take easier courses or a lighter schedule. They can rely on their stronger classmates for assistance. But faculty have no place to hide. They stand in the front lines the first day they walk into class. It is not surprising that many of the complaints about affirmative action are directed at weaker faculty rather than weaker students. Strong black faculty members have to fight student preconceptions that they are there because of their race and not their ability. The heavy concentration of black teachers in black or race studies only increases the perception of ghettoization.

The case for affirmative action at the faculty level has to be weaker than it is for admission to college. Yet even here, no generalizations come easily because a lot depends on the mission of the college or university and the substantive demands of the discipline. The point is even more true once we abandon the high moral ground to examine, as Bowen and Bok urge us to do, the long-term impact of affirmative action on the vitality of universities.

The Shape of the River does deliver on its promise to supply facts that justify affirmative action in college and university admissions. The evidence that Bowen and Bok offer should be sufficient to answer across-the-board objections to affirmative action based solely on the self-evident truth of the color-blind position. But they still leave key questions about the appropriate use of affirmative action unanswered.

Even if there is a single, distinct color-blind approach to college and university admissions, there is no similar unity of approach for affirmative action. It could be practiced on a small scale or on a grand scale. It could be used to make sure that a critical mass of black students is enrolled in a given college. Or it could be used to make sure that the percentage of blacks in any institution is identical to that of blacks within a local community, a state, or the nation as a whole. There is no single answer to the question of how much affirmative action is ideal for any given institution of higher education. The right way to think about this question therefore starts with a strong preference for decentralized decision making. Let each college and university decide, free from government coercion (and that requires the repeal of the present version of 1964 Civil Rights Act as it applies to private colleges and universities), how much affirmative action it wants.

Many people on both sides of the affirmative action debate will recoil at the thought that private institutions should be allowed to chart their own course on this issue. The defenders of color-blind norms are often conservative defenders of free markets, but they are prepared to sacrifice freedom of contract and association to prevent what they regard as unacceptable discrimination. Meanwhile, the defenders of affirmative action want to use the stick of civil rights laws to maintain affirmative action, fearing that without coercion private colleges and universities will backslide into the traditional racial practices of Jim Crow.

This nightmare scenario is hard to take seriously. The key reason affirmative action survives is that it commands strong support within colleges and universities. The explanation for this support is both simpler and more powerful than is often acknowledged: It is simply not possible today for any major college or university to present itself to its alumni, its faculty, or its prospective students as a lily-white (or white and Asian) institution. Perhaps diversity doesn't enhance the educational experience. Perhaps it doesn't promote tolerance and understanding across groups. Perhaps affirmative action creates internal resentments, some serious instructional difficulties, and invidious individual comparisons. Perhaps it also creates an unfortunate set of desserts and rewards. No matter. So long as the demand for it remains, the practice will remain. Given this reality, the wise course is to decentralize the debate so that each college and university can make its own decisions, thereby shifting the focus from the lofty question of "whether" to the grubby question of "how much."

These observations are incomplete be-cause they do not address how affirmative action should be implemented, if at all, within state-run institutions. I confess that I am uneasy about the predictable conservative response that the Equal Protection Clause requires that states hew to a color-blind approach. That principle works well when it requires that the same penalties be given to all individuals who commit the same offense, or at least to rule out race as a ground for more serious punishment of one individual than another. I have heard little sentiment anywhere for affirmative action in the criminal code, even though many voice concerns about an implicit racial bias in law enforcement.

Yet here we are not dealing with the forms of protection supplied by the night-watchman state. We are dealing with the distribution of public benefits to various citizens. I freely confess that there is no first-best solution to this problem, because no one can explain why higher education should be part of the public sphere in the first place. But there it sits, and it dispenses huge subsidies to a fortunate few who gain admission to its programs. These public institutions are in direct competition with private ones. Why, then, should they be precluded from adopting practices that private educators think indispensable for their colleges and universities in the current social and intellectual environment? It hardly matters whether I agree with their judgment or not: No one should be allowed to elevate his own views on affirmative action into an immutable first principle. But owing to incessant political pressures, it is not possible to decentralize decisions by public institutions about whether, and if so how, to implement an affirmative action program. And so we lurch from extreme to extreme.

The idea of a "national conversation" about race rests on the facile assumption that dialogue will yield a single solution backed by a broad social consensus. But this industrial-policy approach to affirmative action is subject to the same fatal objection that is raised against it in banking or computer research: too much central planning. Our core national commitment should be to a rule of law that creates zones of private authority where individuals may form voluntary associations that reflect the aspirations of their members and not those of the population at large. Bowen and Bok would have done us all a great service if they had stressed the sound institutional framework for making decisions about affirmative action rather than pushing their own preferred policy outcome. "Leave us alone" offers a much stronger foundation for affirmative action than "we are surely right."

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