The Remedy: Class, Race, and Affirmative Action.

• Author: Malamud, Deborah C.

By Richard D. Kahlenberg New York: BasicBooks. 1996. Pp. xvii, 350. $25.

Every year at Passover, Jews gather around festively clad tables for a ritual meal -- the seder -- to remember and to celebrate the liberation of the Jews from slavery in Egypt thousands of years ago. The liturgical script for the seder, the haggadah (roughly translatable as "the telling"), aims to bring the youngest generation of contemporary Jews back to this key moment in Jewish history. Children are asked to "remember" the constitutive acts of bondage and liberation that define the Jewish people: they are retold at Passover what happened to them when they were slaves in Egypt. Early in the seder, the haggadah tells of four questions that four different sons ask about the Passover ritual: the wise son, the wicked son, the simple son, and the son who does not know how to ask. Each son, we are told, is to be answered according to his temperament and capacity. The mark of the wicked son is that by asking his father "what is this ritual to you," he places himself outside the community. He, unlike the other children, is to be answered harshly that "had you been there, you would not have been worthy to be redeemed." Through these questions, the seder builds community by postulating its existence and drawing around it a circle of acceptable inquiry. What makes an inquiry acceptable is the inquirer's acknowledgment of her personal stake in the answer. The core of Judaism, for me, is not a "creed," but rather a set of recurrent questions, argued passionately and from the inside.

The current societal debate on affirmative action, like the Passover seder, is fundamentally about the drawing of a circle of appropriate inquiry and thus the boundary of a community. My generation of decisionmakers -- professionals who came of age in the 1980s and 1990s -- inherited affirmative action as part of the status quo. But affirmative action has lost its just-so quality. The common sense of its continued existence has been pierced by courts (the Supreme Court in Croson(1) and Adarand,(2) federal courts of appeal in Hopwood(3) and Taxman(4)), by long-pioneering institutions (the University of California Regents(5)), and by a bellwether electorate (Proposition 209 in California(6)). To make matters worse, the controversy has broken the polite silence that had for so long made it possible simultaneously to support affirmative action and deny how white our institutions would look without it. It seems not long ago that liberal university administrators would castigate white students who dared to suggest that but for affirmative action, the vast majority of their African-American and Latino classmates would not be there. Now Hopwood has outed the facts,(7) and liberal law professors must teach them. A generation that never chose affirmative action must, as legislators, corporate managers, university presidents, deans, and members of admissions and personnel committees, embrace the question of affirmative action as its own and -- to amplify on President Clinton's apt phrase -- defend it, mend it, or end it.

On what basis are we to decide? On the basis of core values? Of political symbolism? Of an empirical evaluation of the continuing need for, and effectiveness of, affirmative action? Is the answer to these questions different now than it would have been in the 1960s (the legal peak of the civil rights movement) or in the 1970s (when affirmative action first became a central part of government and corporate policy), and, if so, why? Are we in fact free to ask these questions, or does asking them place us outside the boundaries of the civil rights community?

With these questions in mind and in need of guidance, I turned to some recent writing on the politics and policy of affirmative action. Remembering Mark Kelman's admonition that "[a] `great' law professor may discuss affirmative action with an obvious elegance that most laymen clearly lack[, b]ut whether he has more insight into the substantive issues at stake or privileged access to the 'right' answers is quite another question,"(8) I selected writings not only by a law professor (Christopher Edley, Jr.), but also by a sociologist (John David Skrentny) and a philosopher (Amy Gutmann); I selected from the popular (Richard Kahlenberg, Edley) as well as from the scholarly (Skrentny, Gutmann) literature; and I chose works whose stance toward traditional affirmative action ranges from support (Edley, Gutmann) through claimed neutrality (Skrentny) to opposition (Kahlenberg). Each of the selected works focuses on affirmative action for African Americans; I do the same for the purpose of this review. In reviewing these works, I lay out the pathway I have followed in moving toward my own conclusion on the affirmative action issue and assess what the authors have to offer.

Because this approach takes apart the authors' arguments and rearranges them to suit my own needs, I will begin by describing each author's argument in its own terms. I will then turn to six key questions I have asked myself about affirmative action and disaggregate the authors' works to see where the selected literature as a whole leaves me. The questions are:

1. What is affirmative action? How much of current antidiscrimination policy should be seen as "affirmative action"?

2. Why was affirmative action adopted in the first place? Should we defer to our original decision to adopt affirmative action on the assumption that it represents a careful analysis of the issues? Is that assumption borne out by the history of affirmative action as a policy?

3. Why do opponents of affirmative action object to it? Is there any validity and/or moral stature to their views?

4. What are the justifications for doing affirmative action? Are they valid, both as to their ends and their means?

5. Does affirmative action succeed in meeting its goals? Can it be eliminated and its legitimate goals met in other, less controversial ways?

6. Ought a person even be asking these questions? Ought we, at this stage, assess affirmative action based on its success or failure as a social policy? Or is the current symbolic significance of affirmative action such that one simply must take a political stand for it or against it based on one's general support for the goals of the civil rights community?(9)

1. THE AUTHORS' ARGUMENTS

   Before moving to a thematic account of the contributions the books under review make to affirmative action decisionmaking, I lay out each author's argument and indicate the starting point of my critique of each work.

   A. Skrentny

   In The Ironies of Affirmative Action. Politics, Culture, and Justice in America, sociologist John David Skrentny(10) approaches affirmative action as a puzzle in the history of American social policy. Skrentny argues that if policymaking must be viewed as a conscious conflict of groups with competing interests and unequal resources, affirmative action is an anomaly. Affirmative action was not part of the program of the mainstream civil rights movement. largely because colorblindness had a monopoly on political legitimacy. Put bluntly, "[i]n 1964, even if civil rights interest groups wanted it (which they did not) . . . no amount of money could have pushed racial preference into a national policy without a revolution" (p. 13). Instead, the executive branch of the federal government adopted and continued to support affirmative action for a complex and changing set of pragmatic reasons.(11) Skrentny's broad definition of affirmative action is the most problematic element of his analysis, and I critique it at length below.(12) For present purposes, I shall follow Skrentny's practice by using the term affirmative action as he uses it -- as a term that has no specific meaning but that embraces a set of "unit ideas" ranging from the mildest forms of color consciousness to the use of racial preferences (pp. 7-8).

   Skrentny begins the book with a critique of colorblindness. Colorblindness, Skrentny contends, was readily subject to attack as an overstatement of norms of abstract individualism and meritocracy that were already being undermined on a daily basis by such widely accepted practices (as he characterizes them) as veterans' preferences and nepotism.(13) He concludes that the failure of colorblindness advocates to see these inconsistencies between the theory and practice of American abstract individualism "has more to do with African-Americanness than it does with preferences per se" (p. 36). That is, "[t]hroughout American history some groups have simply been constructed as morally worthy, and others have not. . . . Americans who resist affirmative action are simply [objecting to affirmative action] because of its racial beneficiary" (p. 63). It is not merely that, in the abstract, we view preferences as uniquely dangerous when they are drawn on racial lines. Rather, "[t]he interest of the Right and of mainstream America in resisting affirmative action is largely a moral one: blacks are not seen as deserving of preference" (p. 67; emphasis added).

   At the same time that Skrentny portrays colorblindness as morally corrupt at its core, he demonstrates that the political hegemony of colorblindness was such that even the civil rights movement, which certainly did not doubt the moral desert of the black community, expressed its demands in colorblind terms. Martin Luther King, Jr. and other leaders thought that their best hope was to wake America from its "race-obsessed trance" by using the logic of abstract individualism as a political tool (p. 30). Even when King practiced race consciousness -- as in consumer boycotts aimed at proportional representation of blacks in employment in local industries -- he did not preach it (pp. 33-34).

   For Skrentny, then, the irony of affirmative action is that it ever came into existence. How, he asks, did an unpopular program aimed at helping minorities get on the agenda in the first place (pp...