Fairness and Affirmative Action in the 21st Century

Keynote Address
Case Western Reserve UniversityMarch 21, 2000

By Robert M. Berdahl
Chancellor
University of California, Berkeley

President Auston, colleagues at Case Western Reserve University. It is a great pleasure to be here. I have never before had the opportunity to visit this impressive campus and I welcome the chance to visit and to make new friends. It also has given me the opportunity to see, once again, old friends -- David Deming, who served with me as Dean of Fine Arts at UT-Austin and now is the President of the Cleveland Institute of Art, and an old friend from college days, Terry Hokenstad, who has distinguished himself in the world of social work teaching and research. There is something very satisfying to an old midwesterner about being here in the midwest this time of year, with winter nearly over and spring about to burst forth. I miss that sense of anticipation. But, I confess, I don't miss much else about midwestern weather!

By holding this forum on diverse points of view on the issues related to affirmative action and race on our campuses, you are making an important contribution to the civil discourse that is vital to our campuses and to our country. I note that this series will end with a presentation by Ward Connerly, one of the people centrally responsible for stimulating the debate over affirmative action in university admissions. As a Regent of the University of California, he sponsored the move to end the consideration of race in admissions to the University, and he subsequently led a campaign that resulted in the passage of Proposition 209, which ended affirmative action in California education, employment and contracting generally. He has carried that campaign to other states, most notably Washington and Florida. For these efforts, Mr. Connerly has been vilified by many throughout the country, especially on college campuses. It will perhaps surprise many of you to learn that, although I disagree with Mr. Connerly, I have great respect for him. And this is not merely because he happens to be a Regent of the University of California, although that might be reason enough, since as Regent he is one of my bosses! It is because he has built his case on firmly held principles -- principles that are not easy to refute. He has argued his case cogently, treating his critics with much more courtesy than they have frequently accorded him. He is an implacable foe of discrimination in all of its manifestations, a principle that caused him to lead the California Regents to extend employment-related benefits to the same-sex partners of employees. This action confounded many political conservatives in California who failed to understand that Connerly was guided by principle rather than political expediency.

I mention Connerly here at some length, not only because he will be appearing in this forum later, but also because I believe that those of us who continue to support affirmative action will have to take seriously his arguments. We, too, will have to ground our case in a philosophical argument that is consistent with American traditions and constitutional principles. I want to return to this issue later; my remarks will be, in some sense, a public discussion with Mr. Connerly, since we will share this same podium, although not at the same time. But first, I want to make some observations about history. I am a historian, as you know, so I tend to approach all issues with something of a historical bias. For me at least, it helps to clarify where we are currently on any given issue.

Throughout the history of our country, from the early colonial period to the present, race has played a central role in our legal system, in our political conflicts, and in our social relations. Race stands at the center of the American constitution, which originally counted African-American slaves as partial persons. The most costly war in American history was fought over the enslavement of persons of African descent; and from the Civil War, through Jim Crow, the civil rights movement, to the current debate over affirmative action, race has been a central feature of our political discourse. So, too, is race at the center of any discussion of the nature of our social relations. We know that black and Hispanic children in our society have a much greater chance of growing up in poverty, attending schools that are generally inferior to those of white children, have less access to good medical care, have much higher rates of unemployment, and have a far greater chance of ending up within the criminal justice system. It was in response to these systemic manifestations of racism that policies of equal opportunity and affirmative action were crafted in the 1960s and 1970s. And it was against the backdrop of this legal, political, and social history of race in America that those of us who supported affirmative action at The University of Texas at Austin were astonished to read Justice Smith, writing in the majority opinion in the Fifth Circuit ruling in the Hopwood Case the words: "The use of race, in and of itself, to choose students achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants." ¹ To me, such a statement reflected either a remarkable ignorance or a remarkable indifference to the entire history of race and racism in American society. It is the refusal to confront this history and what it means in contemporary America that often makes it so difficult to conduct a discourse on the subject today.

The introduction of affirmative action into American policy and practice took place at a particular historical moment. It came in the wake of the civil rights movement of the 1960s, when Americans recognized that legalized segregation was morally wrong, constitutionally indefensible, and socially destructive. Linked with the provision of equal opportunity, affirmative action was meant to correct for the many years in which equal opportunity had been denied to African-Americans by many forms of institutionalized racism.

Moreover, the 1960s were also characterized by a political culture of activism that went well beyond the civil rights movement. It was the era of the "Great Society," the "War on Poverty," the general commitment of the country to complete the work of the New Deal and the Fair Deal and to create a society of great and equal opportunity. It was a period of public investment in public goods. Public education, public higher education, for example, was expanded enormously at public expense because it was seen as a public good.

Then the reaction began, and as with many political and social movements, it began in California, then spread to the rest of the United States. It began in California with the election of Ronald Reagan as Governor in 1966 and continued with a tax revolt that won the passage of Proposition 13 a decade later. Reagan had a conservative political agenda; Proposition 13, the property-tax limitation, had a conservative fiscal agenda. Reagan attacked the University, above all, Berkeley, as a center of liberal political activism and one of his first actions as Governor was to demand the dismissal of Clark Kerr as President of the University of California. His curtailment of public investment in public goods other than defense continued through his Presidency. Beginning in 1978, Proposition 13 was devastating to public investment in California. Between 1978 and today, California has fallen from among the top ten states in per pupil expenditure for elementary and secondary education to one of the bottom five.

Thus, beginning in the 1980s and continuing through the 1990s, there has been a tremendous shift in the public mood in America. It has been characterized by the belief that public investments were wasteful and, in fact, counterproductive; it has been characterized by the substantial privatization of public goods, marked by the increase of fees for access to everything from state and national parks to public universities. The private sector is seen as more efficient and productive, and so we have turned to the private sector to run more public facilities, from schools to prisons. This is not to suggest that public investment in public goods has ceased, but there has been a profound change in the public attitude.

In this context, policies seen to inhibit private individual initiative are to be discouraged. Taxes, of course, are seen as the main culprit in the dampening of individual incentive, so politicians run for office with no greater vision of the public interest than to reduce taxes. Any policy that seems to undermine the notion of a meritocracy also comes under fire. Individual achievement, individual initiative, is to be encouraged; the greatest public good, it is believed, will accrue from the collective achievements of the individuals who comprise a meritocratic society. Individual merit should therefore be the sole criterion upon which university admission should be based. Affirmative action, as a product of a "failed" program of the Great Society, is a major barrier to the achievement of meritocratic principles because it provides access to major public goods, namely universities, for individuals based on considerations of factors other than merit alone. Moreover, to some critics, like the Thernstroms, affirmative action is as bad for those whom it is intended to serve as it is for those whom it doesn't serve, because minority students are better served by going to less challenging universities where they merit admission than by going to more selective institutions under the umbrella of affirmative action. ²

There is one additional factor that needs to be taken into account as we review the history leading up to the current attack on affirmative action. And that is that affirmative action was acceptable to the public so long as the public good being distributed was readily available. But as it became in scarce supply, as the demand increased, affirmative action became less tolerable to the general public. For example, the value of a Berkeley or a UCLA degree, real or imagined, drove the demand for access to these two campuses, each of which had already reached its capacity. In 1975, 77% of applicants to Berkeley as freshmen were accepted; by 1990, only 38% of applicants could be accepted at Berkeley, and by 1999, it had fallen to 27%. With the projected growth of demand coming with "Tidal Wave II," in the next decade, this is projected to fall to 17% by 2010. ³ Thus, as an increasing number of students were denied admission to UCLA and Berkeley, the frustration focused on the fact that some admission slots were being filled by students of color admitted in preference to other applicants thought to be more qualified. In Ward Connerly's new book, he declares that it was this realization, brought to his attention by a highly qualified applicant, who had been denied admission to UC medical schools, that precipitated his attack on affirmative action. ⁴

Thus, the effort to end affirmative action, like its beginning, has taken place at a particular juncture of historical forces in American society.

This brief history offers an explanation for the origins and the current attack on the policies of affirmative action in university admissions. In this telling of the story, considerations of anything other than merit in university admissions is relatively new, beginning with the affirmative action policies of the 1970s. But this version does not provide the broader historical context in which race emerged as a factor in the admission of students to universities like the University of California. For university admissions have always been the product of a mixture of public interest, institutional interest, and individual merit.

Admissions policies at public universities historically have tried to find a balance between the often conflicting needs of society, the merit of individual applicants, and the interests of the university. Access to the public resource of higher education has always contained a component of social engineering, for higher education has provided a means of social mobility for individuals and it has provided a trained and professional work force for the American economy. Universities have always tried to fulfill an implicit or explicit social contract. The founding charter of the University of California, for example, enunciated three general principles related to admissions: one, students should be admitted from throughout the state; two, to ensure access to all social classes, the University should be tuition free (because of this stricture, we still do not charge what we call tuition for attending the University; we charge fees instead!); three, admission should be free of political and sectarian influences. Two years later, the admission of women was added to the admission policies. By 1880, the University had also become selective in its admissions, with admissions requirements defined by the University. But already during the 1880s, it was recognized that the quality of high schools varied tremendously, so a category of "special admissions" was created to assure access to students from disadvantaged backgrounds. By the 1930s, this "special admissions" category had grown in importance as a means of admitting students, and with the passage of the GI Bill after World War II, it became an even more important means of meeting the University's social obligation. Between 35% and 45% of admissions to UCLA and Berkeley were done through the special admission category in these years, a far greater percentage than was ever admitted with the use of affirmative action. Special admissions were later restricted at the University, to 4% in 1968 and later to 6% in 1979, but it still remains a category of admission. ⁵

In this reading of history, the use of race, ethnicity, and gender in university admissions is entirely consistent with the University's effort to meet its social contract, a component as logical as geographic representation, consideration of economic disadvantage, or veteran status, and certainly as logical as the special admissions category, which has waxed and waned over the years. How the University should balance its social obligations with the considerations of individual merit is not a new debate; it has gone on for decades within the University of California.

In addition to fulfilling a social contract, university admissions have also functioned to enhance the education of all of the students enrolled by securing a diverse student body. This, too, was part of the function of a geographic and socio-economic distribution of admissions, assuring that students would come into contact with students from different backgrounds and social experiences. Some have alleged that the argument that diversity enhances the education of everyone in the university is merely an excuse, an argument generated after the fact by universities when affirmative action came under fire. I don't believe this is the case. At Berkeley, for example, a conscious effort to build a more international student body was undertaken in the 1930s, with the clear recognition that it was in the educational interest of Californians enrolled there. A storm of xenophobic protest occurred in Berkeley in the early 1930s when attention was drawn to the internationalization of the campus by a gift of the Rockefeller Foundation to construct International House, a large international residence hall on the campus. ⁶

 This is undoubtedly enough of history. I have gone into this overly long treatise on history not merely because I am a historian, but because I believe it is essential to frame the discussion historically. Much of the attack on affirmative action ignores history, by suggesting that race is no different than blood type, for example, or by suggesting that consideration of societal needs in university admissions is a new or invalid factor, or by suggesting that there is no moral distinction between the use of racial preferences in university admissions to overcome the effects of past legal and current societal discrimination on the one hand, and the use of racial preferences to achieve segregation on the other hand. And history provides an important reminder of the fact that universities have for a long time used their admissions process to achieve a variety of social and institutional objectives.

Let us now turn to the issues under discussion in the current debate. I would begin by observing that the current debate has become so politicized and so polemical that rational and civil discourse has become extremely difficult. Both sides are responsible for this state of affairs. Opponents of affirmative action have misrepresented facts, such as claiming that universities have established "racial quotas." (Whenever he is asked about his view of affirmative action, Governor Bush responds, "I am against quotas," thus not answering the question, but suggesting that affirmative action and quotas are synonymous.) And opponents have consistently distorted statistics. Proponents of affirmative action, for their part, have vilified their opponents, often accusing them of racism, and they have consistently failed to acknowledge some of the disadvantages associated with affirmative action or the legitimacy of philosophical objections that have been raised to it. Perhaps this forum can help to change that.

I began by saying that those of us who support affirmative action must take seriously the arguments of those like Ward Connerly, who have voiced strong philosophical and principled objections to it. It is always risky to characterize the arguments of someone in that person's absence, but let me try to summarize, as fairly as possible, his argument. Connerly believes intently that the goal of American society must be complete racial integration to the point that race will no longer be a category of distinction. His own ancestry is a mixture of French Canadian, Choctaw, Irish and African American, and he is married to a white woman; as a consequence, he believes that race cannot be and should not be a defining category and that complete integration requires a color-blind society. He believes it is increasingly impossible to categorize people by race. He recognizes the presence of racial discrimination in our society, but he believes that it cannot be overcome by granting compensatory preferences, which he believes merely re-inscribe racial distinctions that lead to discrimination. He believes that the use of affirmative action in university admissions has led minority students to underachieve in high school. He disagrees profoundly with Justice Harry Blackmun, who wrote in defense of affirmative action: "In order to get beyond racism, we must first take account of race." ⁷ For Connerly, we can never get beyond racism by taking account of race; we can never build a society of equality before the law if we legalize some inequalities. While he recognizes the importance of diversity in the University and has supported efforts to achieve it, he believes that those of us who insist on the educational importance of diversity have probably overstated our case.

These are substantial arguments; they are not the arguments of a polemicist or a political opportunist, and they cannot be dismissed as the arguments of someone who is oblivious to the presence of racial discrimination in America. Any effective and cogent defense of affirmative action must come to grips with them.

How do we respond to them?

It is important to note that there is virtually no distinction to be drawn between the substantive goals enunciated by Connerly and those of us who support affirmative action: both look forward to a fully integrated society in which racial discrimination will have ceased to exist and racial differentiation will have no impact on individual opportunities. The over-riding moral objective has to be the creation of racially just society. The question is how best to achieve this moral objective and what are the social costs attendant upon any course of action designed to achieve it.

It is useful in this context to call attention to the distinction drawn by Glenn Loury between "color-blind" admission policies and "color-neutral" admission policies. ⁸ A color-blind admission policy, like that advocated by Mr. Connerly, insists that the admission of individuals to a university be done without reference to race or, preferably, without even knowledge of the race of the individual under consideration. Recognizing, however, that such a color-blind policy may exact too high a social cost, that is, that the impact on the diversity of selective campuses may be too high, other opponents of affirmative action have been somewhat willing to accept, instead, an admissions policy that is color-blind in its procedure, but not necessarily color-neutral in its outcomes. Such a policy aims at attaining the goal of racial justice and diversity through the admission of groups of applicants without reference to the racial identity of individuals who comprise these groups. It acknowledges the importance of diversity as a social good, while it seeks a proxy for race, thus achieving the same or similar outcome without using race as a factor. ⁹

Thus, for example, while it is clear that a majority of the population of Texas was opposed to affirmative action as a means of achieving racial diversity in its selective institutions, a significant number of Texans were uneasy about the social costs of ending affirmative action. The social costs of ending affirmative action were seen to be not only the denial of access to minorities to the best public institutions in the state, UT-Austin and Texas A&M, but also the fact that a large number of the best minority students would be recruited out of state, perhaps depriving the state of future leaders of the minority community. Therefore, the Legislature adopted the policy of guaranteeing admission to the top 10% of each high school to any public university in the state, including UT-Austin and Texas A&M. This was a color blind policy that was decidedly not color neutral, for the purpose was to sustain racial diversity in the admissions process.

The result of this policy has apparently been to sustain roughly the same undergraduate enrollment of minority students at UT-Austin as before the end of affirmative action or perhaps even to increase slightly the number enrolled. ¹⁰ But it is not without some serious social costs, costs that would seem to me to be higher than the costs of affirmative action. By assuring the access to the top 10% of students from all high schools, weak or strong, it may inadvertently have blocked access to minority or majority students who have attended very strong high schools, who have not graduated in the top 10%, but who would do better at the University than students who graduated in the top 10% from weaker high schools. In short, while the end of affirmative action was intended to reward individual merit in college admissions, the effort to attain the over-riding moral objective of racial justice through other means may have actually weakened the merit-based system of admissions. (It is important to note that when the Regents of the University of California voted for a similar 4% admissions policy, which Mr. Connerly supported, they did so only because it would not have a displacement effect, such as may be the case in Texas.) The social costs may even be higher in Florida, where race-sensitive admissions have been discontinued with a guarantee of admission to all public universities to the top 20% of each high school. Considerations of individual merit have thus been substantially set aside in Florida.

The second social cost of this policy is that its very success in continuing to produce a diverse student body depends on continuing the de facto segregation of Texas high schools. This certainly does not advance the cause of a fully integrated and racially just society in which racial differences are diminished.

The third consequence of the substitution of a color-blind 10% solution to undergraduate admissions is that it does nothing to address the social cost of the end of affirmative action for graduate and professional school admissions. No color-blind proxies are available here. The decline of access of minority students to outstanding legal and medical education may, over the long run, be one of the greatest social costs of ending affirmative action.

Thus, the social costs of alternative means of sustaining diversity need to be carefully measured and weighed against those of affirmative action.

Many have suggested that economic disadvantage can serve as a similar proxy for race, thus introducing a category for admissions that remains color-blind in its procedure, but would not be color-neutral in its outcomes. ¹¹ The UC Regents have allowed for consideration of economic disadvantage in admissions, but it has little effect on the diversity of admissions at Berkeley or UCLA simply because of the very large number of poor white and Asian students who apply. ¹²

If the social costs of the efforts to sustain diversity in a color-blind environment are relatively high, as they seem to me to be in Texas and Florida, what about the costs of ending of affirmative action in the University of California? Here, I believe, those of us who have supported affirmative action may have been guilty of overstating the costs, at least up to the present moment. Media attention focused on the dramatic drop in minority enrollment at Berkeley's Boalt Hall Law School and the undergraduate admissions at Berkeley and UCLA. The drop at Berkeley has been substantial; the enrollment of African-American freshmen has fallen by 49% between 1997 and 1999 and that of Chicano/Latino freshmen has fallen by over 30% during the same period. The decline at UCLA is not quite as steep, but it is also substantial. ¹³

Obviously, we are concerned with that decline and what it may mean for the educational experience of all of our students at Berkeley and we have to be especially concerned about the decline of minority enrollments in graduate and professional programs.

But those numbers, broadcast by the national media, do not tell the whole story. For the University of California is undisputedly the best public university system in the country. The students who were denied admission to Berkeley and UCLA were gaining admission to other UC campuses, each of which is strong, with six of the eight general undergraduate/graduate campuses members of the AAU. While some campuses lost minority enrollment, others, especially Santa Cruz, Irvine, and Riverside, gained. Overall, system-wide enrollment has declined only 2.4%. ¹⁴ Viewed from a system-wide perspective, which is, after all, the perspective of system-wide Regents, it is difficult to claim that the damage of the end of affirmative action in admissions has been severe, judged in terms of overall access to high-quality education. What the cost will be over the next decade, with significant demographic growth and Berkeley admission rates expected to fall from 27% to 17% of applicants while each of the other campuses also becomes more selective, is hard to say, but it may very well be higher.

We must also admit that the end of affirmative action in California has also prompted some important positive steps. It has helped to highlight the woeful inadequacies of many of the public schools in California, especially many of the innercity schools. Some lawsuits have been filed to correct the paucity of college preparatory, advanced-placement classes in some high schools. To date, however, I know of no lawsuits against public school systems based on Proposition 209, which prohibits all considerations of race in public education in California. There is ample evidence, I believe, to demonstrate that race is a factor in the discriminatory practices of many schools, where, for example, the "tracking" of students clearly has a racial component. ¹⁵

In addition, the University of California is currently engaged in multiple efforts to improve the quality of the schools in the state as well as outreach efforts to directly improve the educational opportunities of students in disadvantaged schools. These outreach efforts are color-blind, but not color-neutral, for they are concentrated in the inner cities with large minority populations. Taking all of these efforts into account, the University of California will be spending nearly $250 million next year on various forms of outreach. ¹⁶ Whether this investment will bring the percentage of minority and disadvantaged high school graduates eligible for admission to UC into line with the percentage of the minority and disadvantaged population in the state seems doubtful, but remains to be seen. It is a commendable effort, however, unparalleled in the country, and I doubt that it would have happened if the Regents had not voted to end affirmative action.

Finally, Berkeley has undertaken a complete revision of its undergraduate admissions process in an effort to develop a more balanced definition of merit. Like most large public universities, we had become too reliant in our admissions decisions on an "academic index" that was a sliding scale of SAT scores and GPAs, a scale that was entirely too mechanical in its assessment of applicants. Such a mechanistic process, employed by most large universities, has, I believe, invited the comparisons that have led to the challenges to the use of affirmative action in admissions. We have moved to a process in which each individual application, complete with its essay, is read by two readers and graded by each on an academic scale and a comprehensive scale. If the readers' scores of an application differ by more than one point out of a possible seven, a third reader reads the application. The achievements of each applicant are judged within the context of his or her opportunities. This has required a substantial investment in the admissions process, for we have 34,000 applications to read. It is color blind and color neutral, but it has given us much more confidence in our assessment of genuine merit. Would it have happened without the impetus of the Regents' action to end affirmative action? Perhaps, but I'm inclined to doubt it.

If it can be argued that the overall damage of the end of affirmative action in undergraduate admissions to the University of California is not catastrophic, despite the heavy cost at Berkeley and UCLA and the severe damage it has done to graduate and professional school admissions, what would be the affect if the national campaign to end affirmative action were successful? What if the Supreme Court were to outlaw race-sensitive admissions nationally as the Fifth Circuit has in Texas? Such action would, of course, also affect all private universities and colleges that receive federal funds. What would be the social costs of such a change? Would we be closer to racial justice in America or further from it? I believe the costs would be enormous and that we would be much further from the shared goal of racial justice.

In support of this position, I would call attention to the landmark study of William Bowen and Derek Bok, The Shape of the River, which offers the only substantial statistical study of the long-term consequences of considering race in college and university admissions. ¹⁷ I am sure that most everyone here is familiar with the book, so I will offer only a brief summary of its contents. Based on a database compiled from the matriculation records of 28 selective universities, mostly private, but including three large public universities, between 1976 and 1989, the study tracks the performance of African-American and white matriculants, in college and beyond. Each of the universities in the study employed race-sensitive admissions processes. The study showed that although black students entering these selective universities had substantially lower SAT scores and high school grades than their white and Asian classmates, they were, by any standard, strong students. Although black students graduated from these selective institutions at slightly lower rates than their classmates, at a graduation rate of 75%, they graduated at far higher rates than black or white students at non-selective institutions. ¹⁸Black graduates of the colleges surveyed were more than five times as likely as all black graduates to earn professional degrees or Ph.D.s, and they were as likely as their white classmates to receive advanced degrees in law, medicine, or business. ¹⁹ Twenty years after entering college, black men graduating from these selective colleges earned twice the average of black men with BAs nationwide and black women earned 80% more than all black women with BAs. ²⁰This demonstrates the role that the admission of black applicants to these selective institutions played in helping to create a much larger black middle class in America than existed prior to the beginning of affirmative action. In addition, black matriculants at these institutions subsequently participated at a higher rate than their white classmates in community and civic undertakings. ²¹

Moreover, contrary to the claims of opponents that affirmative action led to a rigid self-segregation on the campus, the study showed that greater racial diversity on the campuses positively affected the attitudes of white students toward black students. Fully 56% of white 1989 matriculants reported that they "knew well" at least two black students and 26% reported knowing well at least two Hispanic students, despite the fact that each of these minority groups made up less than 10% of the total undergraduate population. This is powerful evidence that granting consideration of race in admissions does not re-inscribe discrimination; in fact, it helps significantly to overcome it. ²²

These data are important and they are far more compelling than the evidence, most of it impressionistic, offered by opponents of affirmative action. Thus far, despite some carping about the nature of the institutions included in the study or the fact that it doesn't include Hispanic students, ²³I know of no substantial criticism that significantly alters the validity of the conclusions reached by Bowen and Bok. It provides evidence to support Blackmun's aphorism, "To get beyond racism, we must first take account of race."

What about some of the other arguments raised by Mr. Connerly? Is race an increasingly less meaningful category in a multiracial society with increasing rates of intermarriage? Connerly clearly has a point, as his own family illustrates. Interracial marriage will likely increase, Bob Jones University notwithstanding. The difficulties that confront the U.S. Census with racial categories in California this year will increase with each subsequent census. And it is also true that the self-declaration of race for purposes of university admissions or scholarships raises significant problems.

But that is not to say that racial differences do not remain significant barriers to the achievement of equal opportunity and a just society. How does one explain the fact, for example, that of all of the students in a southern California school district who qualify to take the college preparatory mathematics sequence, 100% of the Asian students and 88% of the white students are tracked into it, while only 51% of the African-American and 44% of the Hispanic students end up in it? ²⁴ Race still matters in schools: it still matters in the criminal justice system, as recent police actions in New York City demonstrate; and it still matters in the economic structure of the country. Declaring race to be a non-relevant category does not make it so and it does not in itself produce a just society. If critics of affirmative action believe that 30 years is long enough for affirmative action to have leveled the playing field, waiting for the melting pot to end racial distinctions will be glacial by comparison.

Does affirmative action lead minority students to underachieve because they believe they can gain admission to selective universities without being completely competitive? This is plausible, of course, but minority underachievement is attributable to so many more significant factors that any role that affirmative action plays in causing "underachievement" is minuscule, if it exists at all. Underachievement has much more to do with poor schools with fewer qualified teachers; it has to do with a culture of rejection, in which "achieving" is seen as "acting white." Underachieving on standardized tests, which are the primary measure of achievement, is also related, as Claude Steele has persuasively shown, to racial stereotyping about test performance. ²⁵

Finally, a serious question that we should all consider: can we build a society based upon equality before the law as an ideal, if we legalize some inequalities, as in race-sensitive admissions? This is a difficult question to answer, either way. Clearly we tolerate many social and economic inequalities that translate directly into legal inequalities. More to the point, however, is the fact that there is a fundamental moral difference between legalized inequalities that are intended to deprive a minority population of equal treatment, as with segregation, and legalized inequalities that are intended to correct the effects of systemic discrimination suffered by a minority population. Segregation and affirmative action are not moral equivalents and they are not legal equivalents, no matter how much the use of the phrase "reverse discrimination" tries to make them seem the same.

This leads me back to where I began: the need to understand the deep scar that race has inflicted on the history of this country. No one understands that more than those, like Ward Connerly, who have felt it from their youth. Connerly has written: "Race is a scar in America. I first saw that scar at the beginning of my life, in the segregated South. And now, more than 50 years later, as we enter a new millennium, I know that it is still here -- prominent, disfiguring, often inflamed -- evidence of the terrible injuries of the past. Black people should not deny that the mark exists; it is part of our connection to America.

"But we should also resist anyone, black or white, who wants to rip open the scar and make race a raw and angry wound that continues to define and divide us. Left to their own devices, Americans will merge and melt into each other." ²⁶

In these sentences, you have the essence of the current debate. The goal, upon which we can all agree, is a fully integrated society, one in which race ceases to be of consequence, a society of complete and equal justice. No one, except the vilest racist, wants to "rip open the scar and make race a raw and angry wound," although I confess to having seen more raw anger since the effort to end affirmative action began than I saw before. This anger and alienation has to be counted as one of the social costs of the current effort to end affirmative action. But the debate is about means, not ends; it is about whether or not social justice can be achieved in the absence of social policies aimed at enhancing the opportunities of those who have historically had those opportunities denied to them; it is about whether or not, "left to their own devices, Americans will merge and melt into each other," as Mr. Connerly confidently asserts.

As I read our history, I have to doubt whether, in the absence of intervention, if left merely "to their own devices," Americans would have ended segregation when we did. I think the weight of evidence is far greater on the side of some formal intervention to end discrimination than it is on the side of discrimination ending naturally, by leaving Americans "to their own devices." I believe that the social costs of that intervention, in the form of affirmative action, have been minimal compared with the gains that have been made. And I believe that the history of university admissions shows that we have succeeded in addressing the needs of social justice, whether it be for disadvantaged youth or GIs returning from war, when we have consciously crafted admissions policies to achieve a social good.

Thank you.

[1]Cheryl J. Hopwood, et al., v. State of Texas, et al. United States Court of Appeals, for the Fifth Circuit, No. 94-50569, 1996.

[2] See Thernstrom, Stephan and Abigail Thernstrom. America in Black and White: One Nation, Indivisible. New York, NY, Simon and Schuster, 1997, p. 388.

[3] For the history of University of California admissions, see John Aubrey Douglass, "The Evolution of a Social Contract: The University of California Before and in the Aftermath of Affirmative Action" European Journal of Education, Vol. 34, No. 4, 1999, p. 393-412.

[4] Connerly, Ward. Creating Equal: My Fight Against Race Preferences. San Francisco, Encounter Books, 2000.

[5] For the history of University of California admissions, see John Aubrey Douglass, "The Evolution of a Social Contract: The University of California Before and in the Aftermath of Affirmative Action" European Journal of Education, Vol. 34, No. 4, 1999, p. 393-412.

[6] See the UC Berkeley, International House web site: http://ihouse.berkeley.edu:7002/

[7] University of California Regents v. Bakke.U.S. Supreme Court, 438 U.S. 265, 1978

[8] See Bowen, William G. and Derek Bok. The Shape of the River: Long-term Consequences of Considering Race in College and University Admissions. Princeton UP, Princeton NJ, 2000,2nd edition, Foreword by Glenn Loury, p. xxiii.

[9] Shape of the River, Foreword by Glenn Loury, p. xxiii - xv

[10] See the University of Texas at Austin web site: http://www.utexas.edu/student/research/reports/admissions/HB5882000329.html

[11] Shape of the River, 46

[12] See the UC Berkeley, Office of Student Research web site: http://osr4.berkeley.edu/

[13] See the University of California Application, Admissions and Enrollment of California Resident Freshmen Fall 1999, 1998, 1997 web site: http://www.ucop.edu/ucophome/commserv/flowfrc9799_3yrs.pdf

[14] See the University of California Application, Admissions and Enrollment of California Resident Freshmen Fall 1999, 1998, 1997 web site: http://www.ucop.edu/ucophome/commserv/flowfrc9799_3yrs.pdf

[15] See Darling Hammond, Linda. The Right to Learn: A Blueprint for Creating Schools that Work. San Francisco, Jossey-Bass, 1997.

[16] See the University of California Outlook web site: http://www.ucop.edu/outreach/outlook/OL4_research.html

[17] Bowen, William G. and Derek Bok. The Shape of the River: Long-term Consequences of Considering Race in College and University Admissions. Princeton UP, Princeton NJ, 2000, 2nd edition.

[18] Shape of the River, p.55-57

[19] Shape of the River, p. 97-98

[20] Shape of the River, p. 123

[21] Shape of the River, p. 158-159

[22] Shape of the River, p. 231-233

[23] Martin Trow. "The Shape of the River: California After Racial Preferences" Public Interest; Washington; Spring 1999; Hebel, Sara. "An Analyst's Unusual Influence Over Higher-Education Debates." The Chronicle of Higher Education; Washington; March 10, 2000; Curtis Crawford. "Weighing the Benefits and Costs of Racial Preference in College Admissions" Society; New Brunswick; May/Jun 2000.

[24] See "Survey of Students in one California District," The Achievement Council, 3460 Wilshire Blvd. Ste. 420, Los Angeles, CA 90010.

[25] Steele, Claude M. "Thin Ice 'Stereotype Threat' and Black College Students." The Atlantic Monthly, August 1999, Vol. 284, No. 2, p. 44-54.

[26] See Ward Connerly, "My Fight Against Race Preferences: A Quest Toward Creating Equal" The Chronicle of Higher Education, March 10, 2000, Vol.XLVI, No. 27, p. B6