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(Re)Mapping the centres Membership and State

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Trevor Harris

"Racial" Diversity and American Unity in Affirmative Action Cases

John Zvesper

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1Modern and post-modern ways of regarding the problem of political unity underlie the debate over affirmative action policies in recent American politics. The proponents of the hardest, most ambitious forms of affirmative action have rested their case on a post-modem outlook. Their opponents have adhered to a modern or liberal approach. During the past decade, the latter approach has been enjoying a revival in federal judicial opinions on affirmative action cases.

Pre-modernity, Modernity, and Post-modernity

2The problem of combining social unity and diversity is the oldest and most fundamental problem of politics. Pre-modem, modern, and post-modem ways of thinking about politics offer three distinctive responses to this problem. To simplify: in the pre-modem view of politics, unity – the centre – predominates; in modern, liberal politics, unity and diversity are more balanced (in theory, although in practice pathological imbalances often occur); and in the post-modern view, diversity predominates.

3If we consider Aristotle’s Politics, we can see very clearly that in the premodem understanding, although the importance of economic and social diversity was recognized (thus Aristotle's famous critique, in the second book of the Politics, of Plato's obsession with political unity), encouragement of cultural diversity was much more questionable: after all, what constituted a "polity" or a regime (a politeia) was understood to be "the" way of life – in other words, the ruling culture – characteristic of that polity. Thus we find that in Aristotle's fundamental reflections on the nature of politics (in the third book of the Politics), he remarks that while one could try to construct a large and diverse country by for example building a wall around the whole Peloponnese, this would not make everyone enclosed within those walls share the same regime: cities like Sparta and Athens would still differ from each other in ways that very much mattered to their citizens, and in ways that made it difficult to think of Spartans and Athenians as members of one political community.

4In the modern (or liberal) view of politics, a country's way of life or culture is less definitive of a political entity, and the modern state (as distinguished from the pre-modern politeia) is in principle multicultural. Stability and economic prosperity are recognized as the central political facts, and while cultural matters and differences (e.g. religion and language) are of course not irrelevant considerations, they are in principle not the primary considerations. The purpose of politics is not so much the cultivation of a particular way of life as it is the security of individual human rights. In this view, there is a separation – never complete, but nevertheless fundamental – between "state" and "society" (Zvesper, 1993, 1-4).

5In the post-modern understanding, the modern attempt on the one hand to maintain some kind and degree of political unity and loyalty centred in the state, and on the other hand to recognize and to tolerate the cultural diversities and attendant, and sometimes quite peripheral, loyalties that are evident in any modern, "pluralistic" society, is radically questioned, and often dismissed as a typically liberal misunderstanding of what is socially desirable and possible. In particular, the alleged attraction of the centre – the demanding but culturally superficial modern state (that "coldest of all cold monsters," as Nietzsche's Zarathustra called it) – is deeply doubted, and in this post-modem understanding greater sympathy is generally given to the multiple cultures of societies that are not presumed to have any single, ruling culture.

6By drawing attention to the post-modem aspect of the issues before us, I do not of course mean to suggest that the phenomenon of competing and shifting social and political allegiances is novel (although this phenomenon is now greatly intensified by both globalizing and fragmenting forces). On the contrary, plural membership is a longstanding feature of the American scene (as a prototypically modern scene). Especially in ethnic and "racial" matters, American citizens have often been pulled towards at least two centres of loyalty: those connected with their ethnicity or "race," and their country. However, I have suggested that this tension is really part of the modern as opposed to the post-modem, and I would argue that in recent decades – for better or worse – the post-modem paradigm has become more influential and more explanatory. For example, since the 1960s, the potential for the multiplicity and fragmentation of Americans’ allegiances has been increased by the rise of a more fragmented and fragmenting "new American political system" and by a greater attention to single-issue and minoritarian politics (as opposed to the coalition-building, more majoritarian politics of previous decades) (King, 1978). The rise of a more fragmented political system coincided with the rise of a more fragmented vision of ethnic and racial relations (Zvesper, 1994, 172-180).

7An important and intriguing feature of this "new American political system" is the tendency for courts and executive-branch bureaucracies rather than legislators to decide – or at least to address – many important policy issues. Legislators have learned that they can often win elections by avoiding political controversy, and they are therefore often quite happy to leave it to judges to deal with controversial policies. Thus the centrality of judicial opinions in this or any other article on the politics of affirmative action, and thus the realization that the presidential election of 2000, while perhaps not offering "a dime's worth of difference" between the two major parties' candidates, nevertheless might well determine a wide range of social policy issues – e.g. affirmative action, state subsidies for parochial schools, restrictions on abortions – simply by determining who will be appointed to anticipated vacancies on the U. S. Supreme Court.

Affirmative Action and Educational Diversity

8One of the characteristic parts of this new American politics is a controversial set of affirmative action policies addressed to the problem of past and present racial discrimination. Like the issue of bilingual education, the issue of affirmative action raises in a very radical fashion the question of the most reasonable political and constitutional treatment of the claims of ethnic or "racial" groups, claims that often compete not only amongst themselves but also against the claims of common American citizenship. The affirmative action controversy thus encapsulates very well the perennial American (and modern liberal) political question of how to fit significant social diversity into a framework of political unity. For American blacks in particular, so obviously excluded from common civic rights for so long, but also so typically American in their need for a common civil identity, political strategy has demanded making a choice – or, more subtly, finding a productive dialectic – between, on the one hand, policies emphasizing individual rights and common, American efforts, and, on the other, policies emphasizing group rights and separate, black-centred efforts.

  • 1 Note the importance of the word "appearance" in this sentence. Shelby Steele (1998-1999) points ou (...)

9At least in its hardest forms (i.e. when it takes the form of preferential treatment rather than merely outreach programmes), affirmative action, on balance, emphasizes the second alternative – in this way, adhering more to the post-modem paradigm than to the modern one. Although its advocates often support it as a policy designed to help unify the country, the pluralistic, multicultural tendency of the policy seems to run deeper than its integrationist, unifying tendency. This is most readily apparent if we look at the case for affirmative action policies when that case is based on forward-looking rather than on backward-looking arguments: that is, when the argument is not that the policy in question is needed in order to compensate for unjust discriminatory actions in the (recent or distant) past (with this argument, it is always difficult to show that affirmative action identifies and benefits the true victims of such unjust treatment), but that the policy is needed in order to create (now or in the future) a more just or more noble social pattern (whether in a particular institution or in the society at large). For when the argument is made in these terms, the emphasis is invariably on the multicoloured and multicultural appearance of the desired pattern, that is on the "diversity" of that pattern.1

10Two different kinds of affirmative action cases have dominated the legal and political scenes: contract, license and employment cases (involving the awarding of government contracts or licenses, or job appointment, training, promotion, and dismissal), and education cases (involving admissions to public schools, universities, and professional schools). The issue of diversity has not been absent from the contract, license, and employment fields, but it has seemed particularly germane in education cases, for two reasons: because it has seemed so plausible to argue that simply having a diverse set of students improves the educational experience, and also because – at least since Plato’s Republic – the regime prevailing in educational establishments has always appeared to be a natural parallel to the regime prevailing in the polity at large: getting it right in the educational system is therefore both a reflection of, and a prerequisite for, getting it right in the country at large. As we also learn from Plato’s Republic, public education is to some extent (in the best regime described in the Republic, to a complete and perfect – and some would say dehumanizing – extent) a device designed to cancel the different life chances that different citizens acquire from their being members of this or that family, residing in this or that neighbourhood.

  • 2 The headline at the top of the first page of The Washington Post on June 29, 1978, reflected this (...)

11Therefore, ever since the U. S. Supreme Court first ruled on the issue of affirmative action in the Bakke case in 1978, the desirability of ethnic or "racial" diversity has served as a justification for some affirmative action policies in education admissions policies. Allan Bakke had complained that he was denied admission to the University of California at Davis medical school because of that school’s having set aside a certain percentage of places for minority ethnic candidates. In fact, there was no opinion "of the Court" in this case (by which Bakke was ordered to be admitted, but affirmative action was not judged to be illegal or unconstitutional2), because no five (out of the nine) justices agreed on all of the decisive questions. However, Justice Powell’s opinion, the key opinion of the six sets of opinions that were written, held up the model of the Harvard College admissions policy, which – in contrast to the UC Davis medical school – had not set aside a predetermined number of places for ethnic minority applicants, but had simply deemed race or ethnic background to be one of many characteristics of applicants that could be considered by the admissions committee in the interest of producing a body of students with ethnic and racial diversity. Justice Powell held up the rationale of this policy by comparing it to the policy of seeking geographical diversity in the entering class of students: "A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer." An admissions policy, he argued, should be allowed "to consider all pertinent elements of diversity" – including race or ethnicity, as long as this is used "only as one factor" rather than the sole factor.

12Since the Bakke case, this argument in favour of "diversity" has been assumed to be a valid and important argument in the affirmative action programmes of many public and private educational institutions and business corporations. However, in the 1990s, the legal status of affirmative action was vigorously contested. A major part of this legal challenge amounted to a philosophical challenge to the radically post-modem possibilities inherent in the "diversity" arguments that have been used to support affirmative action. In some recent federal appeals court cases, the "diversity" criterion that Justice Powell’s Bakke opinion had established has been criticized and rejected as a constitutionally permissible and ruling standard for educational admissions policies. In 1997 the Fifth Circuit Court of Appeals (in Hopwood v. University of Texas) decided that the University of Texas law school’s use of different admissions standards and processes for different ethnic or racial groups was unconstitutional, the legitimacy of aiming for "diversity" notwithstanding. This Court’s opinion pointed out that Justice Powell’s brief discussion of diversity in the Bakke case was not a binding precedent, since no other Justice had joined in that part of Powell’s opinion and argued that the diversity criterion could not stand up to the "strict scrutiny" that the Supreme Court had more recently come to apply in affirmative action cases, because diversity is not a sufficiently compelling governmental interest to override the constitutional protection of personal (individual, not group) rights. The Fifth Circuit Court took the view that aiming at racial diversity "fosters, rather than minimizes, the use of race," and "treats minorities as a group, rather than as individuals.... The use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants." Using race as a proxy for other desired characteristics (e.g. geographical, economic or social background) is dangerous, reasoned the Court, because it risks stereotyping applicants as members of races with merely assumed characteristics. The Court also pointed out that if the admissions committees were to focus on individual applicants rather than on applicants’ ethnic or racial group, then Cheryl Hopwood (the plaintiff in this case) might well be considered "a fair example of an applicant with a unique background":

She is the now-thirty-two-year-old wife of a member of the Armed Forces stationed in San Antonio, and, more significantly, is raising a severely handicapped child. Her circumstances would bring a different perspective to the law school. The school might consider this an advantage to her in the application process, or it could decide that her family situation would be too much of a burden on her academic performance.

13Whether Hopwood was admitted or not, she deserved to be considered as an individual. To foster desirable diversity, the Court concluded, "state universities and law schools and other governmental entities must scrutinize applicants individually, rather than resorting to the dangerous proxy of race."

  • 3 35% was the quota that had been imposed on the School by the court orders that directed the desegr (...)

14A less frontal, but equally, if not more, devastating assault on the diversity criterion for educational admissions, came from the First Circuit Court of Appeals in November 1998, in Wessmann v. Gittens. This case involved the country’s oldest public school: Boston Latin School (which includes among its graduates several signers of the Declaration of Independence, as well as such luminaries as Ralph Waldo Emerson and Leonard Bernstein). This School, with classes from seventh to twelfth grades (ages 12 to 18), like two other such schools in Boston, admits students on the basis of an entrance examination. It had painstakingly constructed a complicated system of classification by race or ethnicity, designed to ensure that about 35% of the places would go to blacks and Hispanics.3 This system, which made race or ethnicity a determining factor in the admission of half of each year’s incoming class (the other half determined by the examination results alone), was defended by the School as being in the interest of maintaining a "diverse" student body. This defense persuaded the district court that first considered the case, but the First Circuit Court of Appeals decided in favour of Sarah Wessmann.

15The Appeals Court’s opinion insisted on a very careful and skeptical examination ("strict scrutiny") of the School’s argument in favour of using racial-ethnic classifications to promote diversity. Unlike the Fifth Circuit Appeals Court in the Hopwood case, it did not openly reject Justice Powell’s Bakke opinion, but by applying and thinking through that opinion it challenged the easy acceptance of diversity as a compelling reason for hard affirmative action. It strongly resisted abstract generalities and insisted on looking "beyond the School Committee’s recital of the theoretical benefits of diversity" to enquire "whether the concrete workings of the Policy merit constitutional sanction." It warned that "the unsystematic personal observations of government officials will not do, even if the conclusions they offer sound plausible and are cloaked in the trappings of social science."

16The Court found three major difficulties in the School’s case for diversity: (1) The School’s policy focused "exclusively on racial and ethnic diversity," whereas Justice Powell’s opinion (as we have seen) had allowed race and ethnicity as only one element among others in diversity management. (2) The School’s own evidence showed that a significant amount of racial-ethnic diversity would occur without the policy (reliance on examination results alone would produce classes containing about 18% minority students); therefore its policy must be seen as designed to produce "racial balancing," which is "almost always constitutionally forbidden," because such balancing endangers individualistic "democratic ideals" and invites racial or ethnic stereotyping by treating individuals merely "as the product of their race." (This resembles the reasoning of the Hopwood Court.) (3) Finally – and here the Court does (silently) move towards questioning rather than simply applying Justice Powell’s opinion – the School offered nothing but "rank speculation" and "absolutely no competent evidence that the proportional representation [of racial and ethnic groups] promoted by the Policy is in any way tied to the vigorous exchange of ideas" or to "students’ capacity and willingness to learn"; in other words, the Court raised the question as to whether and how race or ethnicity can logically be among the (in Justice Powell’s words) "pertinent elements of diversity" (my emphasis) that an educational admissions policy rationally pursues. This is a question that surely deserves to be at the centre of future debates about diversity as a justification for affirmative action. There are other possible justifications – compensation for past discrimination being the one most frequently used and approved by the courts – but justification on the grounds of diversity has begun to look much less persuasive.

Conclusion

17These two recent cases demonstrate that the individualistic language and logic of the Constitution and Amendments must make governmental preferential treatment based on racial or ethnic categories deeply suspect, even in the case of educational admissions policies that pursue the goal of diversity. To return to the context set out at the beginning of this article: the modernity of that language and logic – if they are taken seriously – compels resistance to the temptation (a temptation that post-modernity seems to invite) to allow racial or ethnic groups a significant degree of legitimacy in the modern regime of toleration and encouragement of diverse cultures. In a coherent modern view, cultural diversity (which can include geographical, economic and social diversity) can be encouraged only in the larger and overriding context of the recognition of the need for political consensus (i.e. unity) on the fundamentals of personal, individual rights. In this context, "race" and ethnicity (the latter perhaps to a lesser extent, if it refers to genuinely cultural matters rather than merely to gene pools) must be inherently suspect categories, and must not be regarded as constituting truly cultural phenomena, to be treated as candidates for inclusion in a modern, liberal multiculturalism, because the focus on racial or ethnic group rights must detract from adherence to the rights of citizens as individual human beings.

18To state this more generally: post-modernity detracts from the modern idea of the political by detracting from the basic consensus that is needed for modern, liberal politics to thrive. Post-modernity also detracts from the idea of the human, if our acknowledgment of the human has to entail (as the modern, liberal view of politics entails) the acknowledgment of human individuals as well as human groups. Thus, although post-modem support for diversity and the case for tough affirmative action may seem to be generous and liberal views, they actually undermine the cause of liberal politics, by undermining one of the basic tenets of this politics: namely, that it is individual human beings rather than groups who have human rights and responsibilities.

Bibliographie

Works and Cases Cited

Aristotle, 1984. Politics. Trans. Cames Lord. Chicago and London: The University of Chicago Press.

Hopwood v. State of Texas, 1996.78 F. 3d 932 (Fifth Circuit).

King, Anthony, ed., 1978. The New American Political System. First edition. Washington, D.C.: American Enterprise Institute.

McLaughlin v. Boston School Committee, 1996.938 F. Supp. (D. Mass).

Plato, 1968. The Republic. Trans. Allan Bloom. New York and London: Basic Books.

Regents of University of California v. Bakke, 1978.438 U. S. 265.

Steele, Shelby, 1998-1999. "The Culture of Deference." Academic Questions 12.2: 54-62.

Wessmann v. Gittens, 1998. Case No. 98-1657 (First Circuit).

Zvesper, John, 1993. Nature and Liberty. London and New York: Routledge.

—, 1994. "Ethnicity and 'Race' in American Politics." In Richard Maidment, ed., The United States in the Twentieth Century: Democracy. London: Hodder and Stoughton. 159-182.

Notes

1 Note the importance of the word "appearance" in this sentence. Shelby Steele (1998-1999) points out that this kind of multiculturalism often "has nothing to do with culture"; in fact, this kind of multiculturalism "actually suppresses America’s rich cultural variety, because much actual culture does not mesh with victimization. A troublesome implication of jazz, for example, is that blacks are irrepressible since they created one of the world’s great art forms in the midst of oppression.... Culture gets in the way of multiculturalism" (61-62).

2 The headline at the top of the first page of The Washington Post on June 29, 1978, reflected this somewhat contradictory result: "Affirmative Action Upheld: Court Orders School to Admit Bakke, Curbs Racial Quotas."

3 35% was the quota that had been imposed on the School by the court orders that directed the desegregation of Boston’s schools from 1975 to 1987. The School (with no legal compulsion) continued this quota from 1987 until 1996, when it was successfully challenged in McLaughlin ν Boston School Committee. The School then employed consultants to invent the system challenged in the Wessmann case.

Auteur

Institute of United States Studies, University of London

© Presses universitaires François-Rabelais, 2000

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