Vol. 15 No.8 (August 2005), pp.734-742

AFFIRMATIVE ACTION AND RACIAL PREFERENCE: A DEBATE, by Carl Cohen and James P. Sterba. New York: Oxford University Press. 2003. 416pp. Hardback $30.00/£18.50.  ISBN: 0-1951-4894-0. Paper $20.00/£11.50. ISBN: 0-1951-4895-9.

Reviewed by Daniel Lipson, Department of Political Science, Kalamazoo College. Email: dlipson@kzoo.edu .

While the 2003 GRUTTER v. BOLLINGER decision concerning affirmative action at the University of Michigan Law School resolved disputes over the constitutionality of affirmative action that had been brewing for 25 years, impending turnover on the United States Supreme Court may lead the Court to limit or reshape its affirmative action jurisprudence. Now that the nomination and confirmation process to replace Justice Sandra Day O’Connor is underway, the constitutional status of affirmative action may not be as settled as it appeared to be. Just two years ago, Justice O’Connor firmly defended the constitutionality of universities’ use of race-based affirmative action in her GRUTTER majority opinion. Now that President Bush has nominated Judge John G. Roberts to replace O’Connor, affirmative action will likely rejoin abortion on the short-list of controversial social issues that dominate confirmation hearings.

While author Carl Cohen is a philosopher, he is also a major player in the affirmative action battle, and this volume references two occasions in which he became entangled in legal conflict. First, Cohen was the catalytic player at the University of Michigan who began the GRATZ v. BOLLINGER and GRUTTER v. BOLLINGER path to the United States Supreme Court. Indeed, Cohen is prominently featured as one of the central figures in Stohr’s (2004) account of the GRATZ and GRUTTER litigation. Cohen began the investigation of race-based affirmative action in the Literature, Science and Arts (LSA) undergraduate admissions and Law School admissions procedures. His State of Michigan Freedom of Information Act (FOIA) request gained him access to the very documents that sparked the lawsuits.

The second legal conflict revolved around the publication of this volume itself. As James Sterba mentions in the Preface, contractual disputes between Cohen and him “almost ended in a lawsuit” between the two authors (p.xi). According to Sterba, his close friend Cohen resisted the specifications of the book contract regarding the order of the debate, insisting that his writings in opposition to race preferences precede Sterba’s defense of affirmative action. Sterba wrote that, “[r]ather than delay the timely publication of this volume with a lawsuit and destroy our friendship, I have agreed to reverse the order of our essays” (p.xi). While this book focuses on the philosophical debate between proponents and opponents, both authors are intimately aware of the tangible legal and political dimensions of affirmative action and of the strong [*735] feelings and sensitivity Americans have about this delicate issue.

Together, these two legal stories highlight the explosive nature of the affirmative action debate in the United States. As polarized as the opposing sides may be, and as litigious as the issue is, the public disputes over affirmative action often overshadow complexities of the debates and of affirmative action policies themselves. In addition, the disputes often obscure commonalities – including even friendships – that exist across the great divide that separates proponents and opponents of affirmative action.

A variety of books on affirmative action were published soon after the Court decided these two University of Michigan cases. Journalist Greg Stohr’s A BLACK AND WHITE CASE provides a gripping account of the affirmative action drama at the University of Michigan, focusing on the university actors and other key players involved with the litigation. Patricia Gurin, et al.’s DEFENDING DIVERSITY (2004) provides an insider perspective on how social scientists at the University of Michigan assembled and framed empirical scholarship in making the legal case that diversity constitutes a compelling governmental interest, as required by the Supreme Court’s strict scrutiny test. Additional books in the post-GRUTTER era focus on topics ranging from the history of affirmative action in the United States to the variety in affirmative action policies around the world.

AFFIRMATIVE ACTION AND RACIAL PREFERENCE: A DEBATE by Carl Cohen and James P. Sterba falls squarely within the genre of normative arguments for and against affirmative action. Three features set this book apart. First, it succeeds at balancing thorough analytical argumentation with thoughtful incorporation of contemporary events and relevant research. Second, the writing is very clear, accessible, and well organized.  Third, the debate format provides the reader with a helpful portrait of the differing assumptions and frameworks that undergird the differences between the classic arguments for and against race-based affirmative action.

This volume will not disappoint readers who seek a thorough account of the classic cases for and against race-based affirmative action. Collectively, Cohen and Sterba tackle a wide array of issues central to the affirmative action debate. They grapple with definitions of affirmative action and terminology; how affirmative action works in practice; whether race-based affirmative action violates the 14th Amendment equal protection clause and/or the Civil Rights Act of 1964; how large the preferences for racial minorities are and should be in elite universities; which, if any, rationales for affirmative action are compelling; which methods are narrowly tailored to achieve the above compelling interests; which racial and non-racial groups universities should prefer in the admissions process; to what extent affirmative action does and/or should “cream the crop” of applicants of color; and how harmful or beneficial affirmative action and its absence are for students of color.

However, the book is not without its limitations. Importantly, this volume continues to frame the affirmative action [*736] debate based on categories and divisions from the early years of affirmative action in the late-1960s and 1970s. This classic debate is becoming increasingly outdated, as new political dynamics have begun to produce an issue evolution (Carmines and Stimson 1989) that is leading to realignments and policy transformations.

The book is very current in one sense: both authors use contemporary events – such as Proposition 209, HOPWOOD v. TEXAS, and GRUTTER v. BOLLINGER – to support their arguments. However, the frameworks they employ to interpret these events come straight out of the affirmative action debates in the 1970s. During these early years of race-based affirmative action, opponents tended to center their case around an insistence on a narrow conception of meritocracy, showing little compassion for universities’ choice to give special consideration to minority and other disadvantaged applicants with lower grades and standardized test scores. On the other side, proponents defended race-based affirmative action on social justice grounds, insisting on group-based remedies for discrimination against racial minorities.

In many ways, these original frameworks persist today. At the grassroots level, supporters predominantly view affirmative action as a social justice policy that is central to the liberal civil rights agenda, while critics generally view it as well-intentioned but damaging reverse discrimination. However, the framework of the affirmative action debate has undergone major changes among legal, political, and organizational elites. Although critics of affirmative action won major legal victories via litigation and ballot initiatives in California, Texas, and Washington State, affirmative action proponents at the elite level were incrementally gaining the support of military leaders, corporate leaders, higher education leaders, and prominent elected officials from both major political parties. The thread uniting these elites is diversity management rather than social justice. Leaders of the Republican Party, Fortune 500 companies, and the U.S. military have their own, distinct, utilitarian reasons for defending race-based affirmative action. Supporters strategically adjusted their defense of affirmative action to privilege these diversity-management rationales, leaving behind the social justice remedial arguments that were once central.

As the colorblind leaders found themselves increasingly marginalized by these powerful, organizational elites, colorblind activists regrouped and revised both discourse and legal mobilization strategies. Prominent opponents today distance themselves from this rigid meritocracy discourse, instead voicing support for class-based affirmative action. Sterba and Cohen couch their debate largely within the original framework, paying little attention to the dramatic shifts in the debate that showed up so clearly in the GRUTTER litigation and ultimate decision. In part, this is because they chose to write a philosophical book that centers on the debate over competing conceptions of equality. But in doing so, their book missed out on the great transformations that have reshaped the debate over the past generation.  [*737]

Like many others writing normative pieces on affirmative action, Cohen’s writing style is distracting because of its absolutist vocabulary and condescending tone. For example, he makes rampant use of hyperbole; he regularly labels race-based affirmative action as

“cruel” (p.130), “corrupted” (p.130), “hypocri[tical]” (p.130), “catastrophic” (p.144), and “disastrous” (p.162). In addition to his tendency to portray race-based affirmative action as a catastrophe, Cohen also writes in a strangely paternalistic tone, as if the readers will enjoy witnessing him scolding his co-author. The paternalistic manner in which he addresses and criticizes his coauthor (for example, when he begins a sentence saying “No, Sterba” on p.288) is also unusual and distracting for this kind of book. In addition, Cohen uses childish language such as “wrong and bad” throughout the book to delegitimize race-based affirmative action.  While it is refreshing to read a philosophical text that relies on ordinary words instead of employing unnecessarily esoteric language, Cohen tips the scale too far in the opposite direction.

The debate in this volume bears a remarkable resemblance to the legal debate surrounding the 1978 BAKKE case. This alone is not necessarily a weakness in two senses. First, much has remained the same in the debate over affirmative action, and the authors’ careful attention to the issues raised in BAKKE – e.g. whether preferences versus quotas are narrowly tailored, whether the educational value of diversity is a compelling governmental interest, and whether the Harvard model of individualized review versus formulaic models of grade-and-test-score admissions is preferable – is central to the affirmative action debate today. Second, the authors’ choice to argue based on the classic divisions may reflect their judgment that the best arguments today are the classic arguments. Nonetheless, neither author adequately acknowledges the realignment that has transformed affirmative action law and politics.

Early opponents of affirmative action articulate a rigid, individualistic, meritocratic argument based on a narrow conception of meritocracy. Put simply, such colorblind activists agree with President John F. Kennedy that “race has no place in American life or law” and hold on to the narrow, meritocratic view that the sole appropriate role for admissions officials in elite institutions is to reward the most deserving. Such early critics of affirmative action have been chastised for lacking compassion for the downtrodden. In contrast, contemporary colorblind leaders like Ward Connerly have become much savvier in their arguments. For a variety of reasons, Connerly has moved beyond this early colorblind discourse that Cohen continues to embrace, instead articulating more cautious and compassionate positions. The most concrete change is that the new generation of colorblind leaders – many of whom are themselves non-white or multiracial – now speak regularly of their support for class-based or disadvantage-based affirmative action. Instead of taking a rigid stance in favor of merit and against any preferences, the new colorblind movement speaks of “special consideration” for those who have “overcome adversity.”

Yet, Cohen exhibits little support for the new colorblind movement’s turn; [*738] instead, he holds onto a narrow conception of merit and a firm objection to preferences.  Indeed, he is suspicious of the rhetoric of “diversity” and “individualized review,” claiming that universities have been captured by liberal civil rights professionals who push the ideology of race preferences to further their own interests via disingenuous and hollow rhetoric.

One weakness of Cohen’s classic colorblind position is that its hard-line meritocracy arguments would presumably close the door not only to preferences for racial minorities, but to all preferences (e.g. for socially or economically disadvantaged, athletes, veterans, disabled, legacies, in-state or out-of-state applicants, men or women, and so on), and few citizens or elites would want to slide down this slippery slope. This hard-line view – that students with high grade-point averages (GPAs) and high standardized test scores are entitled to admission in selective institutions because they merit admission – prevents universities from intentionally shaping the composition of their entering class of students. As the military and Fortune 500 briefs in GRATZ and GRUTTER reveal – a topic I will return to below – leaders of public and private organizations claim to have compelling reasons to care deeply about the composition of their institutions. As Sterba points out, Cohen skirts this issue by refusing to take a position on non-racial preferences (p.336). By limiting his analysis to race preferences, Cohen takes the easy way out, avoiding taking a stance on class-based preferences, disadvantage-based preferences, or other common targets of preferences.

Compared especially to Connerly’s colorblind agenda, Cohen exudes less compassion for universities’ efforts to aid the disadvantaged and to broaden the conception of merit. Cohen appears to assume that one particular, formulaic model of conducting university admissions that relies heavily on grades and standardized test scores is the only legitimate way to measure merit (pp.138-139). He also appears to assume that this narrow measure of merit is the only legitimate yardstick for deciding university admissions. It is important to note that the trend among admissions professionals over the past decade has been to move away from this model and instead rely on a holistic, individualized review of applicants.

In contrast, Ward Connerly’s strategy for winning over converts appears to be much more politically promising than Cohen’s. Connerly embraced and even mandated preferences for the socially and economically disadvantaged; note that the University of California Regents’ 1995 SP-1 directive – which Connerly masterminded – bans the use of “race, religion, sex, color, ethnicity, or national origin as criteria for admission to the University or to any program of study” but instead requires the campuses to give consideration to applicants who have “suffered disadvantage economically or in terms of their social environment.” Colorblind leaders like Connerly also have avoided the trap of claiming that applicants with high GPAs and test scores are necessarily the most qualified and hence entitled to admission; Connerly instead has gradually come to embrace universities’ efforts to measure merit more broadly and to admit applicants holistically via individualized review [*739] instead of using formula-based admissions.

Cohen’s argument also suffers from being too absolutist in several respects. First, he is so skeptical of race-based affirmative action that he defines it in a highly problematic way. Cohen defines race preferences as “the policy of giving special advantages to the members certain minorities simply on the ground that they are members of those ethnic groups” (p.3). As Sterba notes, Cohen’s definition of race-based affirmative action makes no mention of a core component of affirmative action—namely, equality. Affirmative action has traditionally been designed to be a civil rights policy that promotes equality via concerted efforts to include members of groups who currently suffer, or have in the past suffered, discrimination. This is not at all apparent in Cohen’s definition. To imply that affirmative action proponents seek to give preferences to minorities for preferences sake is to misunderstand affirmative action.

Second, Cohen’s blanket assertions about race preferences are often so extreme as to be highly unpersuasive. Colorblind scholars either ought to reject race preferences under all conditions or else specify persuasive rules for discerning the conditions under which such preferences are legitimate. Cohen takes the hard-line position that race preferences are never statutorily, constitutionally, or morally acceptable. For example, he writes that “[t]here is no ethnic preference that can be ‘benign’” (p.34). As Sterba notes, Cohen’s zealous opposition to every racially preferential policy shuts the door on numerous types of legitimate anti-discrimination measures, including court-ordered remedies that are authorized under the Civil Rights of 1964: “Clearly, the Civil Rights Act does prohibit racial preferences that exclude or discriminate, but it should not be taken to prohibit all forms of racial preferences, because that would mean that it would prohibit the very preferences that are needed to correct for violations of the Act itself, thus making its enforcement impossible” (pp.317-318).

Cohen’s argument is strongest in the sections that do incorporate the contemporary colorblind arguments. Cohen objects to government classifications of individuals based on their race not only on classic colorblind dogma of individualism, but also based on objections to government’s enterprise of constructing and perpetuating racial categories. Cohen wisely points to the increasingly visible dilemmas of multiracial identity in his argument against race-based affirmative action. If government allows universities to use race-based affirmative action, then government and universities inevitably must enter the business of deciding, for example, who is African-American. If universities trust applicants’ racial self-identifications, then they open the door to possible cases of students lying or misleading the universities in order to increase their chances of admission. Apart from self-identification, university officials are faced with uncomfortable choices in the case of multiracial applicants.

Should they use the problematic “one-drop rule”? If not, what method should universities use to decide who is a racial minority? As legal counsel for Plessy argued in the classic PLESSY v. FERGUSON case, government [*740] classifications by race are inherently problematic because they differentially treat individuals based on questionable and inherently problematic criteria. Whereas proponents of affirmative action want to duck these difficult “membership” questions, contemporary colorblind actors are beginning to apply the left’s post-structural insights into the social construction and deconstruction of identity against the left’s civil rights policy agenda. Whereas Sterba and other proponents argue that “race matters,” and that government and private institutions should use color-conscious affirmative action remedies in order to achieve a just colorblind society, Cohen argues that affirmative action policymakers continue to “invent” race (Skrentny 2002) and cement the very artificial and damaging racial categories that civil rights leaders such as Martin Luther King, Jr., sought to dismantle.

As is the case for Cohen, the primary weakness of Sterba’s argument is that it too is rooted primarily in the discourse over affirmative action from a generation ago. The classic defense of race-based affirmative action is that equality before the law requires that government take affirmative measures for racial minorities to remedy past and present discrimination. In contrast to the classic colorblind model’s individualistic orientation, the original, remedial defense of affirmative action is rooted in a structural framework for which the racial group – rather than the individual – is the unit of analysis. While critics of affirmative action have long dismissed such defenses of affirmative action as dangerous, if well-intentioned, “social engineering” by government that results in reverse discrimination, affirmative action supporters have insulated themselves by reframing affirmative action via the rhetoric of outreach, opportunity, and diversity.

One of the best features of Sterba’s section of the book is his precision in categorizing and defining these three varieties of affirmative action policies: remedial affirmative action, outreach affirmative action, and diversity affirmative action. While Sterba supports all three, he recognizes that the Supreme Court has largely closed the door on remedial affirmative action except in rare cases of court-ordered desegregation measures (primarily in public universities in the deep South). Siding with Brennan’s dissenting opinion in BAKKE, Sterba argues that race-based affirmative action should be subject to intermediate scrutiny rather than strict scrutiny. Sterba’s conception of “diversity affirmative action” mirrors Justice Powell’s articulation of the diversity rationale for race-based preferences, which the Supreme Court in GRUTTER firmly established as binding precedent in 2003.

While Sterba clearly defines and defends his three varieties of affirmative action, his case for affirmative action underemphasizes some of the more important contemporary transformations in the new color-conscious movement. Most importantly, he defends affirmative action from a liberal, civil rights perspective, failing to recognize adequately the powerful conservative, managerial case for affirmative action that has won over the Supreme Court as well as leaders of Fortune 500 companies, the military and other government agencies, and elite higher education institutions. [*741]

Sterba asserts that opposition to affirmative action comes from a conservative ideology, and he defends affirmative action using a liberal, social justice framework. In contrast, the Supreme Court upheld the constitutionality of race-based affirmative action in GRUTTER largely on the grounds of diversity management logic that were articulated by corporations and military brass, rather than on the social justice logic that were articulated by liberal civil rights organizations. By relying heavily on the military and Fortune 500 amici briefs, O’Connor’s decision deferred to the pleas of these leaders of powerful, and traditionally conservative, institutions. The corporate and military briefs held that race-based affirmative action is a crucial tool for the management of corporations and the military. The military brass brief argued that a diverse officer corps is essential to American national security because racial tensions otherwise result from disproportionately non-white enlisted personnel resenting being controlled by white officers. As important an issue as this might be for national security, such a case for affirmative action is fundamentally not based on equality or social justice. Instead of focusing on the rights of the minority recipients in gaining access to institutions, such a case for affirmative action focuses on the benefits to the institution in having more minority recipients. Whether or not the result is the same, the case for affirmative action is dramatically different. The Fortune 500 companies filing amici briefs similarly support race-based affirmative action because it helps them achieve their own profit goals. Specifically, the briefs asserted that race-based affirmative action – as a tool for producing and managing diversity in the workforce – is crucial for a variety of essential functions, including product development, marketing, and workforce relations.

In short, Sterba does not anticipate or respond to the criticism that affirmative action has lost its social justice roots and become coopted by large organizations for diversity management purposes. While he endorses remedial affirmative action, outreach affirmative action, and diversity affirmative action, Sterba does not acknowledge the possibility that the diversity affirmative action he is supporting has mutated to the degree that it is no longer primarily a civil rights policy but is rather a utilitarian, diversity management policy. According to this view, race-based affirmative action is increasingly becoming a tool for large organizations – both public and private – to manage diversity to further their own non-civil-rights organizational interests. Some view this as elite cooptation of affirmative action; others see it as savvy, strategic reframing by the left to successfully persuade the Supreme Court and other decisionmakers that affirmative action passes constitutional muster. In fairness to Sterba, some of this view does come through in his defense of diversity affirmative action.

Overall, AFFIRMATIVE ACTION: A DEBATE would be an excellent choice for courses on affirmative action, civil rights and racial politics, legal philosophy, ethics and politics, or other courses focusing on race and equal protection. Its accessibility, depth, attention to current events, and debate format make for a fascinating and illuminating analysis of one of the most [*742] explosive and controversial public policies in the United States.

REFERENCES:

Carmines, Edward G., and James A. Stimson. 1989. ISSUE EVOLUTION: RACE AND THE TRANSFORMATION  OF AMERICAN POLITICS. Princeton, N.J.: Princeton University Press.

Glazer, Nathan. 1987. AFFIRMATIVE DISCRIMINATION: ETHNIC INEQUALITY AND PUBLIC POLICY. Cambridge, Mass.: Harvard University Press.

Gurin, Patricia, Earl Lewis, Gerald Gurin, Eric L. Dey, Sylvia Hurtado. 2004. DEFENDING DIVERSITY: AFFIRMATIVE ACTION AT THE UNIVERSITY OF MICHIGAN.  Ann Arbor, MI: University of Michigan Press.

Skrentny, John D. 2002. “Inventing Race.” 146 THE PUBLIC INTEREST 97-113.

Skrentny, John David. 1996. THE IRONIES OF AFFIRMATIVE ACTION: POLITICS, CULTURE, AND JUSTICE IN AMERICA. Chicago: University of Chicago Press.

Stohr, Greg. 2004. A BLACK AND WHITE CASE: HOW AFFIRMATIVE ACTION SURVIVED ITS GREATEST LEGAL CHALLENGE. Princeton: Bloomberg Press.

CASE REFERENCES:

GRATZ v. BOLLINGER, 539 U.S. 244 (2003)

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003)

HOPWOOD v. TEXAS, 78 F.3d 932 (5th Cir. 1996),

PLESSY v. FERGUSON, 163 U.S. 537 (1896)

UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE, 438 US 265 (1978)

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© Copyright 2005 by the author, Daniel Lipson.