The Magazine

How Not to Abolish Affirmative Action

The dangers of a victory delivered by the Supreme Court.

Feb 10, 2003, Vol. 8, No. 21 • By CHARLES KRAUTHAMMER
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BEWARE WHAT you wish for. Conservatives have long hoped for the abolition of affirmative action on the grounds that racial preferences of any kind are not only destructive of the American ideal of equality but devalue minority achievement and poison ethnic relations. And the day now seems at hand, the issue having once again reached the Supreme Court. The University of Michigan cases now before the Court grant explicit racial preferences to black, Hispanic, and Native American students. The practice is deeply offensive to any notion of equality. Michigan's undergraduate school adds 20 points to the application of any student belonging to these designated minorities (a perfect SAT score, by way of comparison, is worth only 12 points)--the mathematical equivalent of toting up everyone's score and then subtracting 20 points if your skin happens to be white, or if you happen to be, say, Asian or Arab American.

The question of the day had been whether the president would cave in to the post-Trent Lott reaction and abandon his long-standing opposition to racial preferences by ducking the case. He did not. However, many conservatives (including at this magazine) were disappointed that he did not oppose the whole scheme root and branch by denying that diversity is a compelling state interest. He merely argued that there are other, race-neutral ways to achieve diversity, thus obviating the need and the constitutional justification of race-sensitive programs like Michigan's. The president's brief would thus strike down the Michigan program but leave the issue of abolition unresolved.

The question conservatives have not squarely faced, however, is whether we really want to win the argument at its sharpest and most comprehensive--the total abolition of affirmative action--in the Supreme Court. I used to think so. I'm no longer sure that is the way we should want this issue resolved.

I never thought I'd find myself talking about the wisdom of the Bakke decision. Not the logic, mind you. The logic was an abomination. The Court ruled every-which-way, inventing unintelligible distinctions between quotas and goals and timetables and the mere consideration of race as a "plus factor." In effect, it simply took a dodge, leaving the door open for every jurisdiction and organization to work out its own affirmative action schemes. Yet in retrospect there was a social benefit to this messiness. That cacophonous ruling created a marketplace of affirmative action schemes. Bakke did not foreclose the issue. It tried to contain but not abolish the allocation of preferences. As a result, it allowed society a quarter of a century to duly experiment and see the results.

As social science, the experiment has been a success. Affirmative action has been tried and found wanting. When put to the test of popular opinion, racial preferences fail. Affirmative action is dying a popular and legislative death. It would be overkill and perhaps even counterproductive to preempt that success by killing it judicially by fiat of the Supreme Court.

The flaws and injustices of affirmative action as demonstrated by its real-life practice over the past quarter-century have become so apparent that even California and Washington, two of the most liberal states in the union, decisively abolished it. In California, a state that went Democratic in the last two presidential elections by about 12 percentage points, a 1996 ballot measure to abolish all racial preferences passed with a 54 percent majority. This in a state that is now minority white.

Equally liberal Washington state abolished affirmative action two years later by a 16-point landslide, despite the fact that affirmative action opponents had been vastly outspent. In Florida, the governor (Jeb Bush) preempted a similar referendum by legislating the abolition of race preferences in college admissions and in contracting. True, the referendum movement has slowed down in the face of establishment and institutional pressure. But it has not been reversed. Affirmative action is about where abortion was 30 years ago. As societal norms are changing, it is on its way out.

It is an accident of history that the Michigan case came to a head within days of the 30th anniversary of Roe v. Wade. Nonetheless Roe should be a caution to us. At the time the decision was handed down, the laws against abortion were also on their way out. Legislatures were beginning to loosen or abolish the restrictions. Public opinion was changing. But instead of letting the people decide, the Court stepped in and legalized abortion by fiat.