John Bunzel — former president of San Jose State, former member of the Civil Rights Commission, current resident researcher at Stanford’s Hoover Institution — is an old-fashioned liberal. He is old-fashioned enough to have qualms about racial preferences, but liberal enough to support them.
His OpEd today in the Sacramento Bee provides a good example of the appealing and reasonable way he manages to subordinate his qualms to his support.
Perhaps the principal reason I have opposed such measures as California’s Proposition 209 is that I tend to be more of a complexifier than a simplifier. I don’t believe affirmative action, with all of its tangled and fiercely fought issues, can be reduced to the easy categories of “for” or “against” or “right” vs. “wrong,” and certainly not to the “yes” or “no” vote on a ballot initiative. A more realistic assessment requires affirmative action to be viewed in relation to other competing and often conflicting principles.
Is some degree of race-consciousness never defensible? I don’t think there is only one morally correct answer. What is needed is a way of calibrating the relevance of race that falls between “none at all” and “too much.”
I disagree with the absolutists who say that any consideration at all of race is already too much because it is “wrong.” Cases should be judged differently. No one would favor choosing a brain surgeon or an NFL quarterback on the basis of race. But should a city police chief making an undercover assignment in the black community be completely blind to a police officer’s race or color? In the l980s and l990s, many universities voluntarily established ways to hire minority faculty members that ran afoul of their public promises to accord equal treatment to all candidates on a nondiscriminatory basis.
Case in point: In l984, the provost at San Francisco State University approved the English Department’s request for two new faculty appointments, but insisted that they “must be nonwhite. Let me underscore that this stipulation is an absolute condition.” Such race-exclusive practices (many of which have since been ruled unconstitutional) succeeded in giving affirmative action a bad name.
But there were other forms of “race-consciousness” that were not discriminatory. For example, in l970 at San Jose State University a new affirmative action policy mandated a vigorous national search — before any hiring decision was made — for women, African Americans and other minorities to expand the size of the candidate pool in order to maximize the possibility of diversifying the faculty and staff. From this enlarged pool of applicants, the appropriate committees would begin the process of choosing the best qualified person on an individual basis, with race or gender no more decisive than other qualities and qualifications deemed important.
Bunzel is a smart guy, but in my view the argument as presented here is not so much complex as cloudy. It’s easy to say, as he says, that “No one would favor choosing a brain surgeon or an NFL quarterback on the basis of race.” But this formulation implies that someone — Bunzel? — might well favor hiring some other professionals, and of course non-professionals, on the basis of race. If not, what is the principle that prevents it?
Bunzel also suggests that the felt necessity to assign undercover police officers on the basis of race somehow proves that the rule against such assignments shouldn’t be regarded as a hard and fast rule after all, but perhaps more of a strong recommendation or suggestion. I believe, on the contrary, that it is the proverbial exception that proves the rule, and I’ve used it many times myself, such as here. First, how many other examples of this sort of necessity are there? Second, note, as I’m sure Mr. Bunzel knows, even the Civil Rights Act of 1964 [Title VII, Section 703(c)(3)(e)] allowed an exception to the otherwise strict colorblindness it imposed for what it called a “bona fide occupational qualification,” for which the police undercover assignment might well qualify.
But it also might not: as I discussed here, black police officers in New York complained (and were ultimately upheld by the Second Circuit) of being assigned to racial trouble-spots based on their race, and black Drug Enforcement Agency agents also sued DEA over its practice of routinely assigning them to dangerous undercover operations in circumstances where it was thought their race was relevant.
Moving on through Bunzel’s argument, it is clear that San Francisco State’s racially exclusive hiring was discriminatory, but it is not at all clear that the San Jose State alternative touted by Bunzel was not. There was certainly nothing wrong with taking “affirmative action” to expand the numbers of minorities and women in the applicant pool, but in my view there was something quite wrong with choosing the successful applicant on the basis of criteria where “race or gender [were] no more decisive than other qualities and qualifications deemed important.” That is to say that race and gender could be regarded as equal in importance to field of study, area of expertise, scholarly credentials such as publications, etc. To say that is not rather heavy racial preference is a bit far-fetched.
Finally, Bunzel concludes:
Consider the many universities that have decided they do not want an all-white freshman class. If they conclude that race alone will not be the determinative factor, shouldn’t they be given the latitude to offer some sort of special consideration to promising black students with lower-than-the-highest SAT scores and high school grade point averages, and who can be expected to graduate at rates not dramatically different or lower than those of whites and Asians? (While just how much lower is not a semantic quibble, I don’t think the only answer is: “No — never.)
O.K., let’s consider them. What are some of the “many universities” who would have “an all-white freshman class” in the absence of racial preferences? Even aside from the fact that this formulation assumes Asians are white, I don’t know of any. As I recall (no time to check right now), the freshman class at Berkeley was about 7% black just before preferences were eliminated and it went down to about 4% afterward. If I’m not mistaken Michigan officials testified that their percentage of black freshmen would drop to about 4% if they were forced to abandon racial preference.
Interestingly, as I discussed here, at one point University of Michigan officials denied that racial preferences had much of a discriminatory effect by noting that “[o]ut of the fall 2002 entering class of 352, only 21 are African American.” That’s 6%. In Grutter v. Bollinger, however, Michigan argued that eliminating race preferences would have a devastating effect on minority admissions to the law school, even though its expert witness, Dr. Stephen Raudenbush, acknowledged in his testimony that under “race-blind” admissions minorities would make up 4% of the entering law school class. (Quoted in same post linked immediately above.)
In short, I don’t believe there any selective schools that would be reduced to “an all-white freshman class” if they were barred from dispensing racial preferences, even if all the Asian-American freshmen were counted as white. Bunzel qualifies his support of preferences by limiting them to students whose SAT scores and grades he describes, wistfully, I think, as “lower-than-the-highest” and whose chance of not graduating is “not dramatically” lower than those admitted without preferences.
Dream on. This is not an unreasonable ideal of affirmative action, but it has virtually no relation to the way affirmative action actually operates in most selective universities. The minority SAT at Michigan, for example, is 230 points lower than for whites (see last-linked post), and its minority graduation rate is correspondingly bad. As I’ve pointed out here a number of times (such as here and here), the University of Virginia graduates a higher proportion of its minority students than any other selective public institution (and higher also than many private schools), but even there the rate at which minorities fail to graduate is over twice as high as for those admitted without preferences. UCLA law professor Richard Sander has also documented the distressingly low graduation and bar passage rates of preferentially admitted law students everywhere.
I commend to Mr. Bunzel the position on barring preferences of ace National Journal reporter/columnist (and Harvard Law graduate) Stuart Taylor Jr., discussed here. Taylor, like Bunzel, believes it important that elite institutions not be too white, and thus he favors a small amount of carefully tailored and monitored racial preference. Unlike Bunzel, however, he supports absolute bans on racial preference such as the one recently passed overwhelmingly by the citizens of Michigan. He explains:
The modest preferences that I support are what you get when you adopt a ban such as MCRI, because you can count on diversity-obsessed officials such as [U-M president] Mary Sue Coleman to evade the law any which way they can.
In short, John Bunzel’s old-fashioned liberalism is more appealing than the variety now in vogue, but it would be even more appealing if it were more old-fashioned.
