Is Affirmative Action Unfair?

September 24 - October 8, 1996

Created by national correspondent Nicholas Lemann
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EXECUTIVE-DECISION MEMORANDUM

To: The President of the United States
From: D. N. Forser, Chief of Staff
Re: Affirmative Action
Date: September 24, 1996

Dear Mr./Ms. President:

Sometimes people accuse you of employing your uncanny ability to show empathy in order to avoid taking tough positions on issues. Instead you manage to convince all the parties that you're on their side. But on affirmative action, nobody has accused you of this -- yet.

Let's review the story thus far.

Back in the early 1990s two obscure conservative middle-aged California academics with no political experience began promoting the idea of a ballot initiative to abolish affirmative action. They came up with an inspired gimmick: identifying the initiative as closely as possible with the landmark Civil-Rights Act of 1964, everybody's favorite piece of federal legislation in this half-century. They called their initiative "The California Civil-Rights Initiative" and used language outlawing racial discrimination that was lifted right out of the 1964 act.

Everybody ignored them.

Then, in the aftermath of the 1994 Republican congressional landslide, the issue came alive. A few mentions of the initiative in the press, a speech or two on the political circuit -- and suddenly, in the early months of 1995, affirmative action became practically a national obsession. Bob Dole proposed federal legislation to abolish it, modeled on the California initiative.

At the time, your popularity was at a nadir. California was the one state in which you couldn't afford to lose political support, but it looked as if the initiative had the potential to take you down in that crucial state. Politically, affirmative action seemed like the dream Republican wedge issue: the people who hate it most are swing voters, especially blue-collar white males. You had to get the situation under control.

As you'll recall, you set up a White House committee whose work reviewing affirmative action through the winter and spring culminated in your much-praised "mend it, don't end it" speech in July, 1995.

You were lucky. The speech had the appearance of your taking an unpopular but principled stand on a tough issue -- just what your critics say you won't ever do. What nobody noticed, however, is that you never actually said whether you supported the California initiative. The speech brought you a major short-term political benefit: Jesse Jackson decided not to run against you in the Democratic primaries. Since then, rather than having the speech mark the beginning of a major thrust of your Administration's efforts, you essentially haven't mentioned affirmative action. Meanwhile, as time passed, Bob Dole began to back away from the California initiative, partly because he was afraid of alienating Colin Powell and partly because his pollsters convinced him that the swing voters he had to woo were middle-class women, not working-class men. Consequently, for more than a year, you have had a wonderful free ride on affirmative action.

Now the ride seems to be over. Dole is rumored to be preparing a major advertising offensive hitting you hard on the California initiative. Our campaign-intelligence operation has discovered that these ads both attack you for supporting affirmative action and demand that you take a public position on the initiative. The press is bound to take up the ad's call. It's going to be pretty hard to continue pretending that the initiative doesn't exist, as you've done successfully so far. You have to take a stand.

Before presenting you with your options, let me give you a little historical background.

"Affirmative action" originated with an executive order on non-discrimination in federal hiring, signed by John F. Kennedy shortly after he became President. Its birth went unnoticed and had no consequences. A second executive order using the term, signed by Lyndon Johnson in 1965 and also unnoticed, created a new bureaucracy in the Department of Labor to enforce affirmative action, and therefore did have consequences. But there was never a law passed, so affirmative action crept into national life without a consensus behind it. Government agencies created affirmative action programs of various kinds, numbering in the hundreds. In the private sector, universities and corporations by the thousands started affirmative-action programs of their own, most voluntarily, some under pressure from the federal government.

This history has engendered a series of unusual conditions surrounding affirmative action:

It's impossible to define precisely. What its founders intended was something along the lines of "special efforts to help blacks, who are now equal politically, get closer to equal economically." Today the term encompasses special efforts on behalf of women and other minority groups too, and is popularly understood to mean "reverse discrimination of any kind."

Because it is so various, it tends to be debated in terms of anecdotes, not principles.

The few who are beneficiaries of affirmative action like it much more intensely than the many who aren't beneficiaries dislike it. Mostly for these reasons, Presidents and presidential candidates since the mid-1970s have usually concluded that either abolishing or expanding affirmative action isn't worth the trouble. So it rarely gets talked about in national elections.

With these factors in mind, here are your options:

The selections are:

Please read a memo containing a brief argument in favor of Option A.

B: Strongly Oppose the Initiative (Please read a memo containing a brief argument in favor of Option B.)

C: Mend It, Don't End It (Please read a memo containing a brief argument in favor of Option C.)

Option A: Endorse the California Initiative to End Affirmative Action

Mr./Ms. President:

The initiative consistently polls at between 60 and 80 percent approval. Its simple language outlawing the taking of race or gender into account in government decisions is consistent with the best American political traditions. You have never explicitly opposed the initiative. By a familiar dynamic, the people you will upset or disappoint by endorsing the initiative will not vote for Dole, but some people who had been planning to vote for Dole will be pulled over to you by your endorsement. You will quickly defuse what could become a nagging, potentially campaign-dominating controversy that plays to your weaknesses: the perceptions that you're cowed by liberals and that you can't make up your mind. More broadly, to get out from under affirmative action with a dramatic stroke is to allow the Democratic Party to be restored to its rightful place as an economically based party of working people; this issue has been used for twenty-five years by the Republicans as a way of breaking apart the Democrats' coalition on the race issue.

The case for endorsing the initiative is very strong. After endless years of struggle we finally, in the 1964 Civil-Rights Act, enacted into law the principle of a colorblind society. Morally, this is the right approach. This should be a country where everyone is judged, in the words of Martin Luther King Jr., according to the content of their character, not the color of their skin. In practical terms, for the United States -- the world's most ethnically mixed country -- to allow social goods to be apportioned on the basis of ethnicity is to take the first step down the road to Bosnia.

In any event the benefits of affirmative action are questionable. It tends to help the best-off minorities most, and minorities more than white women: why is Vernon Jordan's daughter more deserving of special help than the daughter of a coal miner in Appalachia? Conversely, it has no effect on the lives of the worst-off, the people who live in inner-city ghettos. On campuses and in workplaces, affirmative action actually worsens the racial climate by fostering the idea that the minorities who are there are less qualified -- leading to resentments on both sides. Some economists have estimated that affirmative action, by promoting people above their level of competence, costs the country billions of dollars a year in lost productivity. Let's end this mockery of what the Civil-Rights Movement sought.

Option B: Strongly Oppose the Initiative

Mr./Ms. President:

You've already set out a position that implies you'd oppose the initiative. The public has become steadily more favorable toward you even while knowing that you basically support affirmative action. Having already inoculated yourself, you'd only lose standing if you do anything but oppose the initiative -- you'd look wishy-washy. Any other course of action would enrage minority voters, your most loyal constituency, and cause them to stay home on Election Day. More importantly, polls show strong support for the concept of affirmative action among women, who are the basis for your strong lead over Dole.

In policy terms, if the initiative passes with your endorsement, either strong or tepid, it would inevitably lead to the abolition of affirmative action by the federal government during your second term. Affirmative action was started after the Civil-Rights Act passed because black and white America were still almost entirely separate and unequal. Black people weren't part of the social networks that got people good jobs; they didn't get the kind of education that led to high test scores and prestigious advanced degrees. Many employers, including public employers, actively discriminated against blacks by creating various bogus job "qualifications" that only whites had. Affirmative action was meant to provide an impetus for change: government contractors had to show they were at least looking for qualified black applicants. (The use of quotas and other numerical solutions has been strictly limited by the courts to cases where it is necessary to remedy active, present discrimination.) It's no coincidence that rather quickly after affirmative action was introduced, the black middle-class began its most significant period of growth in American history.

Think what abolishing affirmative action would mean: a massive and immediate drop to pre-Civil-Rights-Act levels (that is, one percent or less) of the black presence in universities, in the military, in the civil service, and in the employment ranks of government contractors. Even if these institutions don't discriminate, they would be forced to pick people on the basis of test scores, in which there are still enormous racial gaps. Much of the long, careful, painful, slow process of increasing the size of the black middle class -- the black sense of stake in mainstream America -- and of increasing the interaction between blacks and whites as equals in school and at work would be undone. Unless you really believe that a black kid and a white kid in America today have exactly the same opportunity, you have to stick with affirmative action as a partial way of evening the odds for the black kid.

Option C: Mend It, Don't End It

Because affirmative action grew up so haphazardly and covers so many disparate programs, there's a lot of indefensible junk in there. You don't want to be in a position of having to endorse it all just because you support the principle of requiring extra effort to include qualified blacks in mainstream roles in society. What Americans most dislike about affirmative action, and what's hardest to justify, are the "set-aside" programs that reserve a fixed percentage of government business for women and minorities, regardless of the particulars of the case and regardless of whether there is a local history of discrimination at the government office in question. These programs seem to throw out the merit principle entirely -- white males just can't get certain business, no matter how qualified (or disadvantaged) they are or how unqualfied (or advantaged) the female or minority contractors are. Set-aside programs have a history of being flagrantly abused by white companies that use minority front-men to get contracts. The aspect of affirmative action against which the Supreme Court has moved most firmly is set-asides.

Affirmative action in private-sector employment and university admissions is a different matter. The benefit is higher: you get a diverse student body or work force, and presumably in the long term a diverse leadership elite, while set-aside programs don't actually integrate anything. It is also widely accepted that in admissions and hiring it's very hard to define "merit" in a unitary, numerical way. Judgment calls are involved, and those excluded usually have other options. Opponents of affirmative action make much of the distinction between equality of opportunity (which they're for) and equality of result (which they're against) -- but decisions made about people who are in their late teens and haven't done much yet in life affect opportunities and results. In other words, making racial and gender diversity a plus factor in these decisions, as long as you're bringing in people who are competent, is a good, defensible idea that shouldn't have its fate linked to that of the set-aside programs. Propose a new initiative of your own: jettison set-asides but preserve affirmative action in university admissions and support the general principle of encouraging positive efforts at minority recruitment and training. Call for an endorsement of the words "affirmative action" and of the idea of racial outreach and inclusion, along with a strict ban on numerical quotas. That way you will have avoided letting the California initiative define your agenda. You will have taken a definite, bold stand; you won't have to talk about affirmative action any more before Election Day; and you'll have a position you can live with in the second term.

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