GORE'S AFFIRMATIVE ACTION VERSUS BUSH'S AFFIRMATIVE ACCESS: WHY COLOR-BLINDNESS STILL WON'T WORK

By MICHAEL C. DORF

Wednesday, Nov. 01, 2000

During the third Presidential Debate, Governor Bush was asked whether he supports affirmative action. He replied that he was against quotas, but that he favored "affirmative access." Vice President Gore responded that he didn't know what Bush meant by affirmative access, subtly insinuating that it was simply a Bush malapropism, like calling the inhabitants of Greece "Grecians."

Yet it turns out that Bush meant to draw an important distinction. Traditional affirmative action gives some preference to minority applicants for jobs and educational opportunities. In contrast, "affirmative access" aims to increase minority participation without relying on racial or other suspect criteria. Affirmative access thus seems to hold out promise as a color-blind alternative to affirmative action — one that will achieve the same end, while employing less controversial means. On closer inspection, however, affirmative access appears unlikely to deliver on that promise.

The Supreme Court's Evolving View Of Affirmative Action

Affirmative action, as it has come to be understood in American law, means taking race, national origin, ethnicity, or (sometimes) sex into account in allocating educational or employment opportunities. It is typically justified as a means of redressing historical injustices, fostering diverse institutions, or both.

The Supreme Court's 1978 decision in Regents of the University of California v. Bakke prohibited a state medical school from setting aside a specific number of slots in the entering class for minorities, thus invalidating a rigid quota system of affirmative action. However, at the same time as it disapproved quotas in Bakke, the Court approved the use of race as a "plus factor" in admissions.

Under a plus-factor system, the fact that a college applicant is African-American may count in his favor in the same way that the college may count as a positive factor another candidate's having been raised on a ranch in Montana, the fact that a third candidate plays the bassoon, or the fact that a fourth candidate has alumni relatives — even though no seats in the entering class are specifically set aside for African-Americans, ranchers, bassoonists, or "legacies."

In the wake of Bakke, public and private universities as well as employers adopted affirmative action programs that employed plus factors. Over the last decade, however, the Supreme Court has backed away from Bakke — rendering the constitutionality of such programs uncertain. Ominously, the Court has stated that all racial preferences are presumptively unlawful. In lawyer's jargon, that means that affirmative action programs must be subjected to, and pass, a court's "strict scrutiny" to be deemed valid.

The Justices have not yet revisited the precise issue in Bakke, but many observers believe that when they do, they will rule that even the plus-factor approach that the Court previously approved is invalid. Indeed, the Fifth Circuit Court of Appeals has already held just that. In the 1996 case of Hopwood v. Texas, that court ruled that the Bakke decision is no longer a binding precedent. Accordingly, it barred the University of Texas Law School — and by implication, all public universities in Texas and the other states that comprise the Fifth Circuit — from giving any preference to racial minorities in admissions. The ruling also has implications for private universities because the courts have treated the constitutional requirement of equal protection and statutory requirements of equal treatment in parallel fashion.

The Texan Response to the Hopwood Decision: Affirmative Access

The elimination of race as a factor in university admissions greatly reduced minority enrollment at public universities in Texas. But Texas is a diverse state whose citizens found the widespread denial of educational opportunities to minorities (especially African-Americans and Hispanics) unacceptable.

Thus, in response to the Hopwood decision, the Texas legislature adopted a law that requires state undergraduate institutions to admit all graduates of accredited Texas high schools whose grade point averages place them in the top ten percent of their class. The result has been to boost minority enrollment without any formal reliance on racial criteria.

The ten-percent plan is the main example of what Texas Governor George W. Bush means by "affirmative access." It uses a formally race-neutral mechanism to achieve racial diversity. Florida Governor Jeb Bush has recently created a parallel program in Florida for students placing in the top twenty percent of their high school classes, and similar proposals are on the table in other states as well.

Affirmative access has considerable appeal. It appears to produce the same results as traditional affirmative action, without the discomfiting need to classify persons based on race or ethnicity. However, programs like the Texas ten percent plan have serious flaws.

Affirmative Access Distorts College Admissions Priorities

First, the ten percent plan severely limits colleges' and universities' ability to select the students they deem most qualified or deserving. Under traditional affirmative action programs, an admissions committee could look at the entire profile of each applicant — including not only her high school grades, but also the difficulty of the courses she took, her admissions essay, her standardized test scores, extracurricular activities, obstacles overcome, the competitiveness of the school she attended, and yes, her race or ethnicity. In contrast, programs like the Texas ten percent plan allocate most spaces simply on the basis of high school grades, thus eliminating these and other intangible factors from undergraduate admissions.

As a result, to the extent that critics of affirmative action contend that it undermines meritocracy, the ten percent "cure" seems no better and perhaps considerably worse. It precludes a holistic appraisal of a student's abilities in favor of a single statistic. Nor should the ten percent system satisfy those critics of university selectivity who believe a college education is a right, not a reward for special merit, and thus favor open or lottery admissions systems. After all, ninety percent of students are left out.

Affirmative Access Depends on Segregation

Another significant drawback of the ten percent plan is that it depends on segregation. Admitting the top ten percent of Texas high school graduates means admitting substantial numbers of African-Americans and Hispanics — but this is an artifact of de facto segregation, where schools divide into white and non-white. Because there is currently a gap between the test scores and grades of white and minority students, integration would threaten the ten percent plan: At least in the short run, the more schools become integrated, the more minority students would tend to fall out of the top ten percent — and below the radar screen of the Texas plan.

Building a system of "affirmative access" on the foundation of segregation is disturbing in itself. Doing so also threatens to harm minority students, and perpetuate segregation. Measured by objective standards, all-minority schools tend to have fewer highly qualified teachers and other resources than the schools attended by white schoolchildren. Thus, under a ten percent plan, a minority parent with a talented child may be stuck in a dilemma: Should she try to send her child to an integrated high school that offers a better education, or the segregated school where he is virtually assured of being in the top ten percent and thus gaining college access?

Parents should not have to make this choice. Also, to the extent that minority parents have the incentive, as a result of the plan, to send their children to weaker schools, the test score and grade gap will only increase. Indeed, the disparity in school quality, along with other forms of past and present discrimination, is a principal cause of the gap in the first place.

Finally, the ten percent plan does not translate well to graduate and professional schools, whose applicants come from integrated undergraduate institutions. Nor does the plan, or even the general "affirmative access" concept, translate to the employment context. It has been suggested that reduction of capitalization and bonding requirements would benefit minority contractors and sub-contractors, who have been and continue to be subject to widespread discrimination. But the evidence to date has shown that these steps are not sufficient to attack the disparities in minority access to private-sector and government contracting.

In the years since the Civil Rights movement, considerable progress has been made in narrowing the racial divide. As William Bowen and Derek Bok show in their book, The Shape of the River, much of that progress may be attributed to programs of affirmative action in higher education. Yet what Justice Harry A. Blackmun wrote in his separate opinion in the Bakke case twenty-two years ago remains true today: "In order to get beyond racism, we must first take account of race. There is no other way." Because they deny this basic truth, proposals like Bush's affirmative access promise to disappoint the hopes they inspire.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University. He is co-author, with Laurence H. Tribe, of "On Reading the Constitution." Currently, he is working with Charles F. Sabel on a book, "Democratic Experimentalism," to be published by Harvard University Press.

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