Affirmative Action: The Realistic Good Trumps the Ideal Best
Theodore J. St. Antoine
Degan Professor of Law
University of Michigan Law School
March 26, 1996.

I am going to agree with a good many things that my colleague and friendly foe for the afternoon, Carl Cohen, is going to present to you. I am going to say that affirmative action is powerful, maybe even dangerous, medicine; that it has some troublesome side effects; that it is divisive; and that it can be demeaning for its intended beneficiaries. It can raise questions as to whether minorities who join university faculties or are admitted as students, who might very well have been accepted without any kind of racial preference whatsoever, have had the benefit of such racial preferences and for that reason are not quite as "well qualified" as their white peers.

 

Let me start with Lord Melbourne's famous comment, frequently quoted by President John Kennedy, to the effect that the best is the enemy of the good. I think the issue of affirmative action is a perfect example of the application of that principle. I agree with Carl that in the best of all worlds we would make all decisions totally on an individual basis; we would not take race or gender into account in admitting people to higher education, either as students or as faculty members. I shall then talk about what I think is the reality of the world we live in, and that is a very different kind of world from the ideal. I shall argue that affirmative action is necessary for the foreseeable future because of the exigencies of the present time in this country.

Before joining the Michigan Law School faculty in 1965, I served as a junior partner to the general counsel of the AFL-CIO. The last major undertaking I was involved with-I have no doubt that Carl Cohen would agree with me on this particular venture-was the passage of Title VII the Civil Rights Act of 1964, which forbids discrimination in employment because of race, sex, religion, and national origin. I regarded that as the crowning achievement of my years in private practice: to have had a hand in promoting that piece of legislation, preparing legislative history, writing arguments in favor of it, helping to keep some of the American labor movement, which was not totally comfortable with the proposal, in line.

We were very naive in 1964. We thought that simply unshackling blacks and women, removing the chains and barriers of the past, was going to get the job done. We thought that totally color-blind and gender-blind treatment would be sufficient to provide equal opportunity, and it simply was not. One of my experiences a couple of years earlier should have given me due warning. Within sight of the Washington Monument in the lovely city of Alexandria, Virginia, I had to s erve as counsel for a group of eminent leaders of various civil rights organizations, all black, who got themselves arrested for criminal trespass because they had the effrontery to "sit in" at a lunch counter in that gracious old Southern town. That was the world they had been brought up in. They were not allowed to eat alongside white people in public places in Alexandria, Virginia, just outside Washington, D.C. I think we should have realized that it is one thing to say to people you are now free and equal in all respects and quite another to recognize what the abuses of two or three centuries-the lynchings, the humiliations, the economic and educational deprivations-have meant in terms of their capacity to respond instantaneously to this suddenly opened door.

First, I shall spend a few moments on the law. I actually feel confident about the ultimate fate of affirmative action, despite the kick in the pants I received last week when Carl called me up to inform me that the Hopwood case had been decided by the Fifth Circuit, striking down as unconstitutional the affirmative action program for admitting students to the University of Texas School of Law. Hopwood was decided by three ardent conservatives appointed by the Reagan and Bush administrations. Their opinion took a cavalier attitude toward Supreme Court rulings they didn't find to their liking, and I am sure we have not heard the last of affirmative action at the University of Texas.

Last year, 1995, the Supreme Court decided a case which on the face of it was troubling to civil rights advocates, to promoters of affirmative action, but which I think, read closely, is very hopeful indeed. That is the Adarand Constructors case, which dealt with affirmative action in the construction industry. Most federal agency contracts give special preference in the awarding of subcontracts to minority businesses. The Supreme Court majority held that any program instituted by government calling for race-based action must meet the so-called "strict scrutiny" test, that is, it must serve a compelling governmental interest and must be narrowly tailored to further that governmental interest. Adarand was a five-to-four decision. There were four Justices who were prepared to say that affirmative action in t he Adarand situation was entirely acceptable. Those four Justices were Stevens, Souter, Ginsburg, and Breyer. They need one more vote; that is all they need to sustain affirmative action under the "equal protection" mandate of the U.S. Constitution. I am satisfied that that vote is going to come from either or both Justice O'Connor or Justice Kennedy.

In the course of their opinion in Adarand, the majority Justices for the first time explicitly imposed a strict scrutiny test that would reach even the action of Congress. They overruled at least one prior decision declaring that strict scrutiny would not be applied to acts of Congress. But most significantly, they added: "[W]e wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact.'" It seems to me that some of the majority Justices were strongly hinting that, yes, we are going to demand a compelling governmental interest to justify affirmative action, but show us a governmental interest that is genuinely compelling and we are prepared to sustain such action.

In addition, there are three centrists on the Supreme Court, Justices O'Connor, Kennedy, and Souter, who are loath to overrule well-established precedent. They demonstrated that in the Casey abortion case, where I think it is evident that one or more of those three Justices would probably have opposed the denial to the States of the capacity to outlaw abortion if they had had the case as a matter of first impression. But because the right to abortion sustained constitutionally in earlier decisions, they were prepared to go along. I believe they will respond similarly on affirmative action.

There are several decisions, some constitutional, some dealing with affirmative action under statutes, that would essentially have to be overruled if the Court is to retreat at the present time. The Bakke case on medical school admissions was statutory; the Weber case on job training preferences was statutory; but both of those cases by one rationale or another sustained affirmative action under certain conditions. There was a famous constitutional case, Fullilove v. Klutznick, in which congressional set-asides for small minority-owned business enterprises were sustained by a six-to-three Supreme Court vote. I do not think the Court is going to turn aside from all these decisions when it is finally faced with a case like Hopwood.

So in my view this great issue of affirmative action will ultimately not be decided as a matter of purely logical legal analysis; it will be decided as a matter of social philosophy and the constitutional values of the Justices. I think the present Court will sustain it. My only real doubts would hinge on the results of next November's elections. That could make a difference in the Supreme Court's composition.

What are the facts that I point to as a justification for affirmative action? I point to very unhappy facts, signs that the blissful naivete of myself and my colleagues back in 1964 simply was not warranted. We have had unemployment in this country that has been double the rate for blacks as compared to whites. It is like an iron law-blacks suffer double the white unemployment rate. If it is 5 percent for whites, it is 10 percent for blacks. If it approaches 10 percent for whites, it approaches 20 percent for blacks. That is the kind of economic quicksand they confront.

In full-time wages back in the '60s, black males received roughly 65 percent of what white males received. By the mid-70s, they had moved up to 75 percent. Then we ran into some recessions and now they are back down again, to 69 percent, not much better than when the Civil Rights Act was passed. At the university level, we have made progress but it is minuscule. We still are not getting the job done. Blacks were 1.3 percent of American university faculties in the early '70s; in the '90s, they have just managed to creep over 2 percent. The last figure that I have seen toward the beginning of the '90s was 2.1 percent.

Let me talk about law schools. When I came to teach at the University of Michigan in 1965, there was not a single black student in the Law School. This was the law school that had admitted the second known black ever to graduate from an American law school. It was the law school that had produced a whole stream of great black lawyers and judges over the years: Harry Edwards of the D.C. Circuit, Amalya Kearse of the Second Circuit, people often prominently mentioned for the United States Supreme Court. It had produced black congressmen, top federal officials, state court judges at all levels. Yet in 1965 there was not one black student enrolled. And I must ask Carl, "Do we want to go back to having no blacks or a mere handful of blacks at the Michigan Law School if affirmative action and preferential treatment is eliminated?"

In Hopwood, the case dealing with the University of Texas School of Law, it is pointed out in the trial court's decision that, absent affirmative action, an entering class of 500 would have had at most nine black admittees. With affirmative action, there were about forty.

What is the harm done by affirmative action? A recent survey by the National Opinion Research Center indicated that only 7 percent of Americans feel that they have been hurt by affirmative action. Two recent Republican Presidents were initially prepared to say, "With a stroke of the pen, we will eliminate affirmative action promoted by the federal government," but ultimately they shrank from doing it. Why? Because American business largely accepts affirmative action, and the Presidents were soon made aware of that. Affirmative action means a bigger pool of employees, and eventually a bigger pool of customers.

Next, I should like to say a word or two about qualifications. We must accept the fact that under standardized tests such as the Law School Admission Test and the other equivalent tests used for various graduate programs, minorities are still not performing on a par with white applicants. And I must say that at the Law

School, minorities on the average are not performing on a par with whites. Does that mean minorities are not qualified to be lawyers? Most assuredly, it does not. In any absolute sense, they are fully qualified to be lawyers. Thus, today's minority student would easily have gained admission to my own law class of the mid '50s. It is only in relative terms, in competition with a vastly improved cohort, that minorities perform somewhat less well.

Indeed, here I want to put before you what I really think is the critical proposition. I am only going to feel comfortable speaking with regard to what I shall call the public professions of our society law, government, police, psychiatrists, clinical psychologists, social workers, the kinds of persons who deal with the members of our society at large. I would argue very strenuously that for that group, and I put law at the head of the list simply because I am most familiar with it, being a black person in the year 1996 is a qualification in the fullest sense of the term. Being a black is a qualification to be a lawyer, a law student, a law teacher. Blackness-or in other contexts femaleness-is an attribute that makes a person more effective in performing certain vital societal tasks.

Race remains one of the most divisive issues in American life. Can you imagine trying to deal with it in an intelligent way without a substantial number of black lawyers to represent black clients and speak for black interests? To understand black problems from the inside? Who cares whether minorities may score a few points less on the Law School Admission Test? Those are all sky-rocketing figures these days anyway. Or a couple of tenths of a point down on the GPA's? That is just not as important as this particular attribute of blackness. I have no doubt that if my white male son had an edge of ten points on the LSAT score and two-tenths of a point on a GPA from some good undergraduate college, he would still not be as well qualified as that black male or female coming to law school who is prepared to make a contribution to our society by helping to bridge today's gaping chasm between blacks and whites. That is where I place the bottom line: Being a black in 1996 is a qualification for the public professions.

I leave it to those of you in the hard sciences and the humanities to make judgments about the applicability of all this to your own fields. I cannot make such a judgment. I only speak about what I know.

My last comment is that in my opinion any effort to substitute socio-economic background as a surrogate, as a proxy, as a means of trying to avoid the race issue in preferential admissions or appointments, will not work. There were substantial statistics presented to the United States Supreme Court in the Bakke case by the Association of American Law Schools in an amicus brief which indicated that if one simply went by socio-economic background, we would wind up with only a token representation of blacks.

We need race as a criterion. I make no apology for it. And there is no need for any black person to feel ashamed about the fact. All the white race is doing at this point is struggling over a couple of generations to make up for the two or three hundred years of degradation to which they have subjected blacks. One cannot expect all those barriers to be surmounted in a single generation. Yet in our pluralistic and increasingly diverse national community it is imperative that minorities enter the mainstream, and that they acquire a vested interest in the commonweal. That is why in my judgment race is genuinely a qualification. It needs to be taken into account at least as much as those supposedly hard data, the GPA's, the LSAT's, and all the rest. It is a qualification for community participation and betterment. A greater sense of involvement and belonging will not only benefit minorities; it will benefit every one of us. We should recognize that that we are choosing a course that is for the best of all of our society.


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