ENDING AFFIRMATIVE ACTION: THE CASE FOR COLORBLIND JUSTICE by Terry Eastland. New York: Basic Books, 1996. 229 pp. Cloth $23.00

IN DEFENSE OF AFFIRMATIVE ACTION by Barbara R. Bergmann. New York: Basic Books, 1996. 213 pp. Cloth $23.00.

Reviewed by Steven Kautz, Department of Political Science, Emory University.
 

Affirmative action is once again under fire. The practice of affirmative action is of course pervasive today. And yet, its principle has always been a bit uncertain; and that uncertainty ("is it fair?") has made it necessary for the friends of affirmative action to tread cautiously and quietly, and to speak as if the policy were no better than a necessary evil, a temporary expedient to be abandoned when the crisis that explains its necessity passes. This familiar defensiveness of the partisans of affirmative action is surely unsurprising in a liberal polity: if "‘distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,’" how can any practice of discrimination on the basis of race be justified (Eastland, pp. 20, 30, quoting Hirabayashi v. United States)? So the advocates of the color-blind principle seem to occupy the moral high ground, since it is hard to specify the principle of affirmative action in liberal terms. Lately, the assault on affirmative action seems to have intensified. Its opponents have won a few important tactical victories, both legal and political, whose full significance is not yet clear, as in Texas (Hopwood) and California (CCRI). What is more, even the partisans of affirmative action often speak of the necessity of reform ("mend it, don't end it") and rarely advance a robust defense of the policy as a matter of principle; a number of prominent conservative black scholars denounce the policy on the grounds that it does more harm than good to its putative beneficiaries; the Supreme Court seems to be prepared to impose strict conditions on the use of racial preferences, at least for purposes that are not somehow remedial; and public opinion, if polls are to be believed, remains hostile to the policy.

So how is it that affirmative action is so pervasive and enduring, in the face of such formidable obstacles? Terry Eastland’s Ending Affirmative Action: The Case for Colorblind Justice provides an answer to this question, by revealing the remarkably protean character of the moral case for affirmative action, as well as the power of the various interests (including, in some cases, Republican and even conservative interests) that sustain the policy against such odds. And Barbara Bergmann’s In Defense of Affirmative Action demonstrates the continuing vitality of the case for affirmative action in the face of such criticisms as Eastland’s, which are founded on a liberal idea of color-blind justice that has now substantially been abandoned by the partisans of affirmative action. Together, these books suggest that the end of controversy regarding affirmative action is not in sight, in part because these continuing quarrels reflect a deeper disagreement about the justice of the liberal principles themselves, so far as these principles hold the rights of individuals as fundamental.

These books are brisk and sometimes angry partisan polemics. Neither book is overly burdened by scholarly apparatus; that is here a kind of virtue, since each book seems to be designed to present a vigorous defense, suitable for a wide audience, of a partisan view. But this is a virtue that will from time to time distress academic students of affirmative action. Thus, readers who are seeking a thorough analysis of the law of affirmative action should look elsewhere: Bergmann’s book in particular is remarkably bereft of discussion of even the most important cases and legal issues (e.g., Griggs v. Duke Power is slighted, even though this book focuses on affirmative action in the workplace); and Eastland’s more sure-footed and thorough analysis of the cases is nevertheless sometimes tendentious (e.g., he arguably reads too much of his hope that the Supreme Court is prepared to end affirmative action into such recent cases as Adarand Constructors v. Pena). Similarly, readers who seek a fully developed analysis of the moral or philosophical case for or against affirmative action should look elsewhere.

Perhaps the principal merit of Ending Affirmative Action is its analysis of the history of affirmative action — in higher education, in the workplace, in government contracting — from its almost accidental origins (during the Johnson and Nixon Administrations) to the widespread practice of affirmative action today. Eastland demonstrates that, as the practice has spread, the affirmative action toolbox has greatly expanded, and the principle of affirmative action has evolved to suit the new practices. There is much that is valuable in this account: on the emergence of the idea of "disparate impact" and the troubles caused by admitting statistical proofs of discrimination; on the misleading claims that affirmative action policies are mostly "voluntary" and that they are "temporary"; on unprincipled Republican use of affirmative action for partisan ends and, more generally, the strange reluctance of many Republicans to undertake a principled fight against affirmative action, even after the 1994 election; on the resistance of states, cities, and universities to legal decisions that restrict the scope of permissible affirmative action; and on the problematic extension of the benefits of affirmative action to women and then to other disadvantaged groups, including groups that now mostly consist of recent immigrants and their children. (Indeed, the strongest and most original chapter of the book concerns the perverse effects of embracing recent immigrants within the scope of affirmative action policies, since the remedial rationale for affirmative action does not seem to apply here.)

Eastland demonstrates that the old-fashioned remedial argument for affirmative action (that justice demands a remedy for the lingering effects of past discrimination) has now been supplanted by a new argument that eliminates the necessity to justify such policies as remedies for past discrimination: "the prospect of unending affirmative action has become all too real in recent years with the discovery of the ‘diversity’ rationale" (p. 16), a rationale that has emerged in a remarkable variety of contexts. The affirmative action argument used to be an argument about justice: color-blind justice versus justice as remedy for injuries. Today, to a surprising extent, this argument about justice has been replaced by a new argument, regarding the desirability of "diversity" for its own sake (in the workplace, in the university, in the media, and so on) and regarding the consequences of affirmative action thus understood for its putative beneficiaries and more generally for race relations in America. In all of this, the question of justice has in some measure been forgotten. Thus, diversity is now often pursued without regard to the relation of the aim of diversity and any past discrimination, as Eastland argues; but it is hard to see how harm to individuals ("reverse discrimination") can be justified where that harm is not the necessary consequence of an effort to remedy past harms to other individuals, which might be just, but is rather the consequence of a policy whose aim is a social or political good ("diversity") that is not (in some cases not even arguably) related to any past discrimination that must be remedied. For affirmative action thus understood seems to treat the individual not as an end but as a means, and such policies are presumptively illiberal. Moreover, Eastland argues, this plea for diversity sometimes reflects or gives rise to the view that "thinking itself is a function of skin color" (p. 178), and that claim is surely a fundamental assault on the foundations of liberal individualism. And the effect of such policies may be, at least in some cases, to invite "judgments about the abilities and achievements of those who are members of the targeted groups" (pp. 8-9), sometimes harming the putative beneficiaries of affirmative action as well as contributing to a coarsening of attitudes about race.

Thus, Eastland reveals, against certain hopes that are sometimes presented here as arguments, "ending affirmative action" is not likely to be achieved, here and now, on the basis of the restoration of the principle of color-blind justice: that strategy relies upon enduring attachment to the principles of liberal individualism that are the foundation of the color-blind ideal, and this is now in doubt. As his own account implies, other (illiberal) principles are now evidently in play, and it is a pity that Eastland does not more directly confront these more fundamental challenges to liberalism itself. The difficulty is most manifest in the hopeless course of action that Eastland proposes at the end of the book: since the Supreme Court, the Democratic Party, and the Republican Party seem for the moment unable to embrace the color-blind ideal, perhaps it is time for a third party founded on this principle. But doesn’t that proposal reveal how frail is our attachment as a people to the principles of liberalism whose restoration would be required for the case against affirmative action to prevail?

Barbara R. Bergmann argues, in her In Defense of Affirmative Action, that "the major justification for affirmative action in the workplace is its use as a systematic method of breaking down the current discrimination against African Americans and women. The desirability of diversity provides the strongest justification for affirmative action in college admissions" (p. 118). The argument of the book focuses on the first of these claims: in the workplace, affirmative action is justified principally on the grounds that affirmative action policies are necessary to combat continuing discrimination on the basis of sex and race. Bergmann thus evades the knotty philosophical problem of justifying affirmative action as a response to past discrimination (or generalized "societal discrimination"): if any failure to achieve diversity in the workplace must reflect actual discrimination in that particular workplace, affirmative action is always a remedy for the continuing discrimination of a particular employer. But this evasion is achieved at the price of embracing a somewhat implausible claim about the pervasiveness of racism and sexism in the workplace today. Thus, for example, Bergmann refers in a rather casual way, without presenting an argument, to the "widespread assumption of women’s basic inferiority and unsuitability for many roles" as "the reason women are most often excluded from those roles in the absence of a conscious effort to include them" (p. 5). For this reason, "affirmative action [is] indispensable if change is to occur" (p. 5).

And yet, it is fair to say that Bergmann presents some serious challenges to critics of affirmative action; Eastland, for example, barely considers the possibility that continuing discrimination might justify at least some affirmative action policies. Here is Eastland on this point: "for obvious reasons, chief among them the inscrutability of the human heart, the question of how much racism truly exists in America is unanswerable. We do not ordinarily make policy, and should not in this case, on the basis of what can’t be known" (pp. 152-53). But Bergmann argues, in the strongest chapter of this book, that much can be known about the persistence of racism in the labor markets; in any case, the argument cannot be as easily dismissed as Eastland suggests. More generally, Bergmann presents convincing arguments challenging those critics of affirmative action who suggest that stricter enforcement of anti-discrimination laws, or education and training programs, or even affirmative action based on economic disadvantage rather than race, can remedy the gross inequalities that affirmative action is designed to address; in the absence of a response to such arguments, conservative criticism of affirmative action might be seen as indifference or worse.

But there is a certain hardness in Bergmann’s argument as well. In a remarkable chapter on the views of such critics of affirmative action as Clarence Thomas and Shelby Steele and Glenn Loury, in which Bergmann presents and then ridicules crude caricatures of their various arguments regarding the ruinous effects of affirmative action policies on their supposed beneficiaries, Bergmann remarks: "Just as all potent medicines have side effects, affirmative action may well have some results that are bad for blacks and bad for women. To fight a war, you generally have to suffer some casualties; the war may also corrupt some of your own soldiers. As always, the issue is the balance of good and bad" (p. 132). But for the old-fashioned liberal, such a willingness to sacrifice the rights and the well-being of individuals for the sake of a collective good, to treat individuals not as ends but as means, as "casualties" in a political war whose private suffering must be "balanced" against the greater good that we seek to achieve, is intolerable. It is the great merit of the color-blind principle that such sacrifices cannot be demanded of citizens, black or white.