Letters

From the May 1999 issue

(Page 4 of 5)

"Just the facts"? That is hardly what Bowen and Bok offer readers. Indeed, as our article in the February issue of Commentary makes clear, they often misleadingly spin the reliable data they do offer, while averting their gaze from the facts that do not support the racial preferences they –as former presidents of Princeton and Harvard–worked so long and hard to institute and implement.

While they assert that many factors other than race entered into the admissions process at the five private schools they studied intensively, in fact their own numbers prove that racial considerations were of overwhelming importance. Black applicants to elite schools in 1989 had very strong credentials, they say, by the measure of student SAT scores in 1951–as if that standard had even a smidgen of relevance. Three-quarters of those students had scores better than the national average for all white test-takers–again, an irrelevant comparison. The whites and Asians admitted to the five schools had scores that put them in the 96th percentile or higher. Contrary to Bowen and Bok’s claims, those who have been admitted do not do well; their grades put the black students, on average, in the bottom quarter of their class, and their dropout rates are high by the standards of the schools they attend. Bowen and Bok pretend that racial preferences are integral to the making of a black middle class, but most of the preferentially admitted students come from families that are already relatively well-off.

This is a very abbreviated list of flaws in the "factual" arguments contained in The Shape of the River. Epstein casts a too-uncritical eye on the work in great part, we suspect, because he does not dispute its fundamental premise–that racial preferences are needed. (Of course, neither the authors nor Epstein call them "preferences," although that is clearly what they are.) Precisely why we can’t abolish them is not clear. Epstein says that, given the "heavily subsidized nature of public education," the demand for preferential treatment of non-Asian minority students is "hard to resist." Because? If public funding demands a student body that "looks like America," then surely there are too many Asians and Jews at Berkeley and other highly selective public institutions, and too few white Christians. The working class is also underrepresented. If Professor Epstein believes in proportional representation, then surely these schools have an obligation to take the task much more seriously than they do.

Texas, which cannot engage in racially preferential admissions, now guarantees admission to the top 10 percent of every high school class. If courts are to strike down racial preferences, Epstein says, they must be prepared to invalidate the policies that states will substitute. But the 10 percent plan, since it does not engage in racial classifications, is not as bad as quotas, and critics like us would be delighted to see suits brought against practices that simply camouflage race-driven policies. Why can’t courts take one step at a time?

If private colleges can decide who gets in on the basis of their skin color, Epstein asks, why can’t public schools do so as well? He forgets that private colleges are likewise constrained, if Title VI of the 1964 Civil Rights Act has any meaning. We realize Professor Epstein would have Congress repeal the entire statute, but that is just one more place where he and we part company.

Abigail Thernstrom
Stephan Thernstrom
Lexington, MA
Authors, America in Black and White

Richard Epstein replies: I am sorry to have tread on the formidable toes of Roger Clegg and the Thernstroms in my review of Bowen and Bok’s The Shape of the River. But their criticisms require some answer.

Roger Clegg’s letter does not take me to task in principle for arguing that the 1964 Civil Rights Act is a mistake, but he insists that we have to make appropriate adjustments in the second-best world by disallowing discrimination against whites and Asians as we now disallow it against black and Hispanics. The uncomfortable social truth, however, is that the strict color-blind rule will empty out the major colleges, professional schools, and graduate programs of virtually all their minority students.

The relevant tradeoff (for those who are not agnostic about academic merit) is how much of an academic discount should be made for minority students in order to avoid that result. I don’t have the answer for all institutions. But I suspect that the one unacceptable answer for most institutions is no compromise at all. It is silly to contend that the persistent use of affirmative action–or racial preferences; the phrasing is not decisive–comes without any cost, when clearly the costs are high. But it is equally naive to contend that the refusal of private institutions to bend from the color-blind principle has no costs either, when clearly it does in terms of their social legitimacy. The world is full of painful tradeoffs, but these are better made at the institutional, not the social level.

The first part of the Thernstroms’ letter is directed less toward me than toward discrediting Bowen and Bok’s claims about of the successes of affirmative action. On this question, the Thernstroms have a lot of ammunition and, for all I know, may well be correct. But that factual dispute is a sideshow to the main event. If Harvard and Princeton want to run affirmative action programs that succeed by their own lights but fail by ours, let them, even if the Thernstroms and I might do things otherwise. My call is for institutional autonomy, not proportionate representation, as the Thernstroms suggest. When Bowen and Bok oversell their program, they should have to answer not to outsiders but to their respective institutions, whose ardor for racial preferences might cool with a full and accurate accounting of its costs. But if these institutions remain undeterred, there the matter should end.

Public institutions present a much harder nut to crack because of the obvious concern about equal treatment of all citizens. By the same token, it is troublesome to use general revenues drawn in part from the poorer groups in society to subsidize the children of the intellectual elites. Perhaps the constitutional command for equal protection requires not only equal treatment between applicants, but equal benefits to all individuals taxed, which in turn means that they have in practice an equal chance of admission. I am very unhappy with both extremes and would resist writing either into law. By the same token, I fear that public institutions, buffeted as they are by political pressures, are not equal to the task of making the necessary marginal adjustments through the affirmative action thicket. Instead they tend to lurch first too far in one direction, then in the other. No easy choices here.

Finally, the Civil Rights Act of 1964 does not put the matter to rest. The act, as drafted, clearly implements the color-blind position, just as the Thernstroms state. But the Supreme Court has construed the act to allow for voluntary affirmative action programs intended to remediate past discrimination. My clear sense is that this once-large exception will gradually close. But the battle over racial preferences will not end, for its real impulse today comes from the call for diversity in the face of unequal qualifications.

If forced to choose, I would rather keep the current unhappy status quo than put all institutions in a straitjacket by allowing no minority preferences at all. But that is a strict second-best judgment, based on the hope that it is possible to temper some of the present excesses. The first-best position is to reduce government involvement in education, however unrealistic it seems at the moment.

Blocked Track

In "Fast-Track Impasse" (February), Brink Lindsey says, "In reality, globalphobia rests on economic illiteracy." Perhaps the free-traders should examine their own logic before accusing others. With free trade and an income tax, there is no tax on imports at the border and no tax at the point of sale. Imports get a free ride. Because the income tax increases the price of domestic products, we are currently pricing our domestic products out of the marketplace.