What is Affirmative Action?

Steve Balch

Melvin I. Urofsky is a man conflicted. A distinguished, retired constitutional historian with numerous books to his credit, he has attempted to write a non-polemical history of affirmative action. He promises the reader a detailed narrative of affirmative action’s emergence, evolution, debates, and battles with a fair rendering of the arguments of its friends and foes. He is also considerate enough to forewarn readers of his own biases, while acknowledging that affirmative action is fraught with both philosophical and practical difficulties that divide people of good will and serious judgment. He himself believes in it, especially in its “softer forms,” and thinks it will continue to be necessary for the indefinite future. All this reflects a bifurcated mindset, one half old-fashioned liberal, the other a “woke” geriatric.

As a historian, Urofsky delivers on his promises . . . for the most part. A good and highly readable account of affirmative action’s history, The Affirmative Action Puzzle, reaches as far back as the Freedman’s Bureau, though it rather quickly vaults over the long period between Reconstruction and the Kennedy-Johnson years. Allowing for the fraught nature of his subject Urofsky maintains a decent dispassion until the concluding sections, though he never leaves any doubt as to where he believes the superior wisdom lies. Unfortunately in his closing discussion of Trump, his “movement” and its policies, Urofsky’s self-discipline collapses into snarky barking and something akin to reductio ad Hitlerum, the president and many of his “extreme right-wing” supporters identified with racism at its deplorable ugliest.

Despite this ultimate loss of dispassion readers who don’t share Urofsky’s slant can still learn a great deal from his book. Even affirmative action’s more reasonable adherents will encounter some eye-opening frankness about the flagrant disregard for democratic decision-making and the rule of law that greased affirmative action’s slide from a policy designed to forbid discrimination to one legitimizing and mandating it. They will also get some affecting accounts of individuals who fell into its toils.

Urofsky doesn’t mince words about the subversions of law. He’s plainspoken about the brazen way in which, first the Department of Labor’s Office of Federal Contract Compliance, and then the Equal Employment Opportunity Commission, disregarded the clear intent of Title VII of the Civil Rights Act of 1964 by insisting on quotas. Equally, Justice William Brennan’s majority opinion in United Steel Workers v. Weber (1979) is exposed for the juridical chicanery it was, ignoring the statute’s clear text and legislative history to deny a white worker redress against the racial discrimination imposed on him by a collective bargaining agreement. Characteristically, Brennan found his warrant in the Civil Rights Act’s “spirit” which, once intuited by him, overrode its letter. Urofsky is enough a liberal of earlier times to be discomforted by these high-handed betrayals of democracy. He also describes a particularly scandalous episode involving the Supreme Court’s “Wise Latina,” Sonia Sotomayor. Sotomayor reportedly frightened a Supreme Court majority out of ruling against the University of Texas in the 2013 Fisher case by circulating a draft dissent that virtually accused the majority of “racism.” But whether Urofsky considers this race-card play a job well done or an historical blot is unclear.

Yet even when he is clearly bridling against them Urofsky finds no deeper implications in these outrages, no symptom of the graver civic maladies which affirmative action has helped seed, nothing of the poisoning of discourse, no hint of what has come to be called the “Deep State” sheltering an officialdom habituated to thwarting legislatures and the franchise because they think they know better. Urofsky has nothing to say about the rise of the “diversity” principle and its displacement of liberty as the most important American ideal. Urofsky’s belief in America’s enduring racism excludes any recognition of the political and cultural ravages this fixation has led to.

His evidence for racism’s continuing sway is found principally in the economic gaps that remain between whites and non-Asian minorities. Urofsky recognizes that since the late 1960s black income has grown substantially, as has the black/Hispanic presence in higher education, the professions, and the managerial class. Some of this he attributes, no doubt correctly, to affirmative action’s successes. A program that preferentially allocates college admissions, contracts, hiring, and promotions to preferred classes will quite naturally result in their members getting more of these desirable things. (Urofsky does however recognize that many of these advances are also the result of blacks and Hispanics individually taking advantage of the increased possibilities that the outlawing of racial discrimination opened to them.) But because gaps remain, and, in metrics such as earned income and median family wealth, have actually grown, he concludes that serious discrimination against non-Asian minorities still exists.

Those familiar with the works of economist Thomas Sowell will see the dangers of jumping to this conclusion. Ethnic groups differ in all sorts of ways that confound simple comparisons of the type Urofsky relies upon, and which require real caution before reaching damning judgements. Ethnic groups differ in age profiles, parental wealth (which may reflect past but not present discrimination), educational and occupational choice, skill sets, consumption and investment habits, and, notably in the case of Hispanics, the changing size of their immigrant communities. It’s certainly startling that black and Hispanic median family wealth in 2013 was $1,700 and $2,000 respectively, one-quarter and one-half, respectively, of what they were in 1983, while the 2013 figure for whites stood at $116,800. But apart from the fact that 1983 was a boom year and 2013 the tail-end of “the Great Recession,” the use of median figures accentuates the statistical drawdown from the relatively large populations in both groups that are dependent on public assistance and whose wealth is, unsurprisingly, minimal or negative. Public assistance programs targeting this population have grown immensely since the civil rights revolution’s heyday and, as the work of Notre Dame economist James X. Sullivan and his associates has demonstrated, from the consumption perspective the people receiving public assistance are much better off now than then. But this isn’t reflected in their earned income figures. Moreover these people are largely outside the population that could benefit from affirmative action because of their marginal participation in the workforce and high dropout rates. These aren’t small considerations and, in his rush to judgement, Urofsky ignores them.

Another problem with Urofsky’s analysis is its failure to offer a clear working definition of discrimination and to whom or what it applies. (The term doesn’t even occur as an item in his book’s index.) Does it mean animus-driven bias, or bias founded on a belief in the legitimacy of social stratification? Does it mean holding a negative stereotype about a group which leads to a pattern of best-guess decisions about their members likely qualifications, which may as it pertains to individuals be wrong? Or is it a function not of individual decisions at all but simply of outcomes that depart from an observer’s estimate of what a fair-share distribution of awards and opportunities would constitute? Punitive and caste based decisions would be condemned by any champion of liberalism, but the last two forms of “discrimination” are less obviously invidious. Urofsky, who shifts from one to another as his narrative proceeds, frequently obscures these important distinctions.

The parceling of opportunities and restrictions on the basis of birth and blood naturally rankles liberal sensibilities. But were it just an isolated phenomenon encysted in the body politic, it would be far less consequential than what it has in fact become, the template for a fundamental reordering of American society and the crushing of its morale. At mid-twentieth century the United States was a confident nation, proud of its Anglo-American constitutional legacy and English language heritage, and possessed of a moralistic individualism that invited, imperfectly but genuinely, all within to share its benefits. It has devolved into a society that finds much of its past an embarrassment, that regards itself as a mosaic of tribal identities, and whose self-assertions increasingly center on claims to victimhood.

In the process it has also upended and reversed America’s status hierarchy, making the previously last the first in almost every sense except, for the nonce, income. Victimhood has become America’s moral totem, and straight white males, though having long led the freest, most productive and, overall, most decent of societies, have no proper claim to it. This is quite a stupendous historical event. And it has so powerfully impacted our culture as to make it hazardous to talk the about the mighty virtues that allowed this besieged subset of humanity to accomplish feats of culture and institution building, which were then bequeathed to everyone else. The old system of Anglo-American individualism had its faults, even sins, but not such as to justify its being junked.

While Urofsky tells us that we must judge affirmative action contextually, meaning in regard to the particular group circumstances a program is intended to benefit, this larger context altogether escapes him. Perhaps that’s because he has been in large measure absorbed into its new zeitgeist. His curtain drop of hyperbole provides ample grounds for this surmise. Its censure of the American people, their civic culture, and by implication its Euro-American core, stings. To quote his closing peroration, “It should be clear by now that the real problem, the one which affirmative action cannot solve, is the deep-seated racism in the country, and there will be no solution to that until all Americans, and both political parties, face up to the fact that America remains a racist country.” It’s also in his view plagued by widespread sexism and misogyny, which he opines played a major role in getting men to support Trump against Clinton.

This is far from the view that America’s civil rights movement proclaimed and relied upon when it was at full flood. Its strategy was, after all, to rouse the American majority’s moral conscience against the injustice of segregation and discrimination against African Americans, and succeeded because its cry struck the nation’s heart. Had mid-century America, outside the South, been genuinely racist, the civil rights movement would surely have foundered. If in the wake of fifty years of anti-racist education, the election of America’s first black president, and a long demonstration of tolerance, however uneasy, for reverse discrimination, America is still racist, that racism must be some sort of metaphysical taint incapable of erasure.

Urofsky’s liberal antecedents show in the uneasiness he himself displays about affirmative action’s departure from classically liberal ideals, his desire and ability (up to a point) to understand the objections of affirmative action’s critics, and his opposition to what he defines as “hard” affirmative action, that is to say, unambiguous quotas. But he has become woke enough to twice approvingly cite Ta-Nehisi Coates’ asseverations on the state of American race relations. It is this alienation, not in a callow millennial, but in a veteran historian still capable of clutching at his liberal roots, that is the most disturbing take away from The Affirmative Action Puzzle.”

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