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Affirmative Action: Is It Fair?

Author(s): Ronald Dworkin
Source: The Journal of Blacks in Higher Education, No. 28 (Summer, 2000), pp. 79-88
Published by: The JBHE Foundation, Inc
Stable URL: http://www.jstor.org/stable/2678715
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 Affirmative Action: Is It Fair?

by Ronald Dworkin

One of the world's leading legal philosophers and theorists addresses the most vexing issue facing higher education today.

challenging the University of Michigan's affirmative action

violate the Fourteenth Amendment's guarantee of plan, and other suits can be expected in other jurisdictions.
IS AFHRMAT1YE ACTION unconstitutional? Does it
"equal protection of the laws" for universities to give The Supreme Court will have to rule on the matter soon.
preference to blacks and other minorities in the fierce com? It will be not only ironic but sad if the Court reverses its
petition for student places, as the best of our universities own long-standing ruling now, because dramatic evidence
have done for 30 years? In 1978 Justice Lewis Powell, in his of the value of affirmative action in elite higher education
opinion in the Supreme Court's famous Bakke decision, has just become available. Critics of the policy have long
ruled that racial preferences are permissible if their purpose argued, among other things, that it does more harm than
is to improve racial diversity =__=_=___^^ _=__=_=_=_^^ good, because it exacerbates
among students, and if they do "77^ Fourteenth Amendmei
it does not mention race, and rather than reduces racial hos"
that
not stipulate fixed minority quo- we have no reason to thM those who drafted and ^ md ^^^ il dam&^
tas but take race into account as endorsed that amendmen
? meant to forbid all racial ^ "^^ students who ^
one factor among many. Since classifications outright.the
Or contrary, many of them selected for elite schools'
riety of racial classifications, where **? must ^"^^ with
four other justices in that case voted for and endorsed a va
-gation in public schools" other students whose test
would have upheld even a quota including even racial seg?
system, five of the nine agreed ============= ================ scores and other academic
that plans meeting Powell's tests were constitutional. qualifications are much higher than their own. But a new
Many lawyers fear that the Supreme Court will soon recon? study ? The Shape of the River, by William G. Bowen and
sider its Bakke ruling, however, and declare that any racial Derek Bok?draws on a huge database of information about
preference in an admissions process is, after all, unconstitu?student records and histories, and on sophisticated statistical
tional. In 1996 the Fifth Circuit Court of Appeals, in the techniques, not only to refute those claims but to demonstrate
Hopwood case, struck down the Texas Law School's affir? the contrary. According to the River study, affirmative action
mative action plan, and two of the three judges on the panel has achieved remarkable success: it has produced higher
declared that recent Supreme Court decisions about affirma?rates of graduation among black college students, more black
tive action policies in areas other than education have leaders in industry, the professions, and community and
already in effect overruled Bakke, so that all university affir? neighborhood service, and more sustained interaction and
mative action is now unconstitutional. friendship among different races than would otherwise have
The Fifth Circuit's decision had immediate and, in the view been possible. If the Supreme Court declares affirmative
of the Texas Law School's faculty, disastrous results: that action unconstitutional, the study declares, black enrollment
school had admitted 31 black students in 1996, but it in elite universities and colleges will be sharply reduced, and
enrolled only four in 1997. The Supreme Court refused to scarcely any black students will be admitted to the best law
review the decision, but the Center for Individual Rights, a and medical schools. That would be a huge defeat for racial
Washington, D.C.-based organization that had facilitated the harmony and justice. Will the Supreme Court rule that the
Hopwood litigation, filed a new lawsuit in Michigan in 1998 Constitution requires us to accept that defeat?
The Fifth Circuit judges are convinced that it will, and if
Ronald Dworkin is Sommer Professor of Law and Philosophy at New York
University and Quain Professor of Jurisprudence at University College in
we are to understand why they think so, and why so many
London. commentators fear that they are right, we must explore the

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 THE JOURNAL OF BLACKS IN HIGHER EDUCATION
apparatus of legal doctrines and distinctions that the Court
has developed, over the last several decades, to assist it in
applying the equal protection clause; for this is one of those
instances, created by our constitutional system, in which
America's social and political future hinges on careful legal
analysis.
The equal protection clause does not, of course, protect cit?
izens from all legal distinctions or classifications that work
to their disadvantage. Government must decide which med?
ical research to support, which art to subsidize, which indus?
tries or products to protect by tariffs or other trade policy,
which businesses to regulate for environmental reasons,
where to locate a new army base or airport or a new nuclear
waste dump, and thousands of other matters that will affect
the fates and fortunes of different citizens very differently.
Officials make such decisions for a variety of reasons. In
principle, they should aim at decisions that, though they ben?
efit some citizens and disadvantage others, are in the gener?
al interest of the community as a whole. In practice, interest-
group politics often play a crucial part: an industry that is
denied protection or selected for regulation may have lost its
legislative battle, not because a different decision would
have been less in the public interest, but because it lacked the
political power, on this occasion, to force that different deci?
sion.
The equal protection clause is violated, not whenever some
group has lost an important decision on the merits of the case
or through politics, but when its loss results from its special
vulnerability to prejudice or hostility or stereotype and its
consequent diminished standing ? its second-class citizen?
ship ? in the political community. The clause does not guar?
antee each citizen that he will benefit equally from every
political decision; it guarantees him only that he will be
treated as an equal ? with equal concern and respect ? in
the political processes and deliberations that produce those
decisions.
"The equal protection clause is violated when its loss
results from its special vulnerability to prejudice or
hostility or stereotype and its consequent diminished
standing in the political community."
But the Fourteenth Amendment therefore poses a special
difficulty for the courts that must enforce it: it requires them
to judge not merely the consequences of legislation for dif-
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ferent groups, but the motive behind that legislation. Was the
law that injures this or that group the product of a forbidden,
prejudiced attitude toward that group or of more benign
motives? It is extremely difficult to attribute motives and
attitudes to general legislation, not just because it is difficult
to identify the psychological states of individual legislators
and other officials, but for the deeper reason that it is often
unclear how we should translate those individual motives ?
and the motives and attitudes of the constituents in whose
interests the legislation has supposedly been adopted ? into
an overall motive that we can attribute to the legislation
itself.
"Affirmative action plans seem entitled to
relaxed scrutiny because, though they use racial
classifications, the group they mainly disadvantage
? white applicants to colleges and universities ?
do not constitute a 'suspect' class."
In some cases, that judgment seems easy, at least in retro?
spect. The Court rightly decided, in 1954, that racial school
segregation violated the equal protection rights of black chil?
dren, because segregation signaled their inferiority and
exclusion. It rightly decided, in 1996, that a Colorado state
constitutional amendment forbidding any local antidiscrim?
ination protection for homosexuals violated the equal pro?
tection rights of members of that group, because, as Justice
Anthony Kennedy said, "the amendment seems inexplicable
by anything but animus toward the class it affects."
Other cases, however, are much more difficult to assess.
Does a local rent-control ordinance, for example, express a
theory about wise and fair housing management or a special
hostility toward landlords as a class? It seems silly to invite
judges to review the political sociology of every piece of
legislation that anyone challenges, because they have neither
the time nor the equipment for such studies. It also seems
dangerous to democracy, because judges might overrule
democratic decisions on the barest speculation of improper
motives.
The courts have instead tried to approach the question of
motive indirectly, through doctrines intended to "smoke out"
improper motives by concentrating on the apparently more
objective question of a law's actual effects. They subject all
political decisions that are challenged on equal protection
grounds to an initial threshold classification. If a decision
2000
 DWORKIN ON AFFIRMATIVE ACTION

imposes serious disadvantages on what the Supremestitutionalry

Court offensive. Black municipal councils might con?
has called a "suspect" class ? a class, according ceivably
to one have acted to favor black businesses out of racial
prominent definition, that is "saddled with such disabilities,
solidarity, for example, or to punish innocent whites for the
or subjected to such a history of purposeful unequalracial
treat?crimes of their ancestors; a university admissions
scheme that gives preference to blacks might conceivably
ment, or relegated to such a position of political powerless-
have been
ness as to command extraordinary protection from the constructed to reduce the number of Asian
Americans
majoritarian political process" ? then the decision is to be or Jews admitted.
subject to "strict scrutiny." This means that it must be Careful
reject? inspection would almost always disclose such
ed as violating the equal protection clause unless theimproper
disad? motives ? statistics could show whether any such
group
vantage can be shown to be essential in order to protect was disproportionately represented among the appli?
some
"compelling" governmental interest. But if those whom a
cants displaced by affirmative action ? but relaxed scrutiny
law disadvantages do not form such a "suspect" would not permit that inspection. On the other
class ? if they are only the members of a partic? hand, subjecting racial classifications that benefit
ular business or profession or the residents of a "suspect" groups to the same standards of strict
particular area, and are not different from then- scrutiny as those classifications that impose fur?
fellow citizens in any way historically associated ther damage on those groups seems insensitive to
with prejudice or antipathy ? then that law is i| *n the important moral differences between those
subject to only a "relaxed" scrutiny: it is constitu? *. J IMW& two aims. It also seems perverse, because, as the
tional unless it can be demonstrated to serve no River study apparently demonstrates, affirmative
purpose or point at all. action is one of the most effective weapons we
The initial assignment of any particular law or have against the racism that strict scrutiny is
decision to one or the other of these "levels of designed to thwart.
scrutiny" has almost always proved final. As one Ronalc
I Dworkin So affirmative action presents a great challenge
leading commentator put it long ago, strict scruti? to the conventional doctrine, and lawyers and
ny is "'strict' in theory and fatal in fact," because almost no judges have suggested different responses to that challenge.
interest has seemed sufficiently "compelling" to justify The most direct ? and, I believe, the most appealing ?
imposing further disadvantage on a suspect class, and response would be to declare the level-of-scrutiny strategy
"relaxed" scrutiny is in effect no scrutiny at all, because inapposite to the problem. That strategy, as it has historical?
some purpose or other can always be attributed to even the ly been understood and used, is designed to identify types of
most inane legislation. legislation that by their nature involve either so high a risk of
So lawyers considering the constitutionality of affirmative invidious discrimination that invidiousness should be nearly
action programs naturally begin by asking whether such pro? irrevocably presumed or so low a risk that its possibility
grams should be initially classi- ^^===^^^=== ^=========== should be nearly irrevocably
one of
fied as requiring strict or only "Affirmative action is the most effective dismissed. Race-sensitive pro-
relaxed scrutiny. But they have weapons ewe
against
hav racism." grams that are, on their face,
great difficulty answering that ^-;---=^=-=^^= ^====:^====^ designed to help a disadvan-
question, because neither choice seems fully appropriate. On taged racial group fall into neither of these categories, and it
the one hand, affirmative action plans seem entitled to is procrustean to try to force them into one or the other.
relaxed scrutiny, because though they use racial classifica? Instead, judges should inspect such plans, when they are
tions, the group they mainly disadvantage ? white appli? challenged in litigation, on a more case-by-case basis: they
cants to colleges and universities ? do not constitute a "sus? should use, as Justice Thurgood Marshall once recommend?
pect class," that is, a class that has been the victim of preju? ed, a "sliding-scale" approach in order to decide whether
dice. But race is so closely associated with bias andthere is any convincing evidence that the racial classification
favoritism that some racial classifications that seem benign actually does reflect prejudice or hostility of the kind forbid?
on the surface might turn out, after a closer look to be con- den by the equal protection clause. Such an approach would

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 THE JOURNAL OF BLACKS IN HIGHER EDUCATION

take into account, among other pertinent factors, the charac? she said, by claiming an interest in achievin
ter of the groups benefited and disadvantaged by the pro? diverse local construction industry, because
gram, the racial or other character of the officials who havemany reasons, other than the continuing ef
designed and will administer the plan, and whether the plan crimination, why a particular race was unde
aims at a goal ? like educational diversity, for example ? particular industry, and it was not a permis
that has historically been recognized as appropriate for the ernment to pursue racial diversity or propo
institution in question. It is true that this case-by-case own sake.
approach to the affirmative action problem would require The Fifth Circuit judges, in their Hopwood
more judicial work and provide less predictability and guid? ing down the Texas Law School plan, relied
ance for lower courts, at least initially, until new rules of Supreme Court's Croson decision to justify
thumb and doctrinal strategies began to emerge. But any ini? university affirmative action plans are now
tial loss in predictability would be more than outweighed byThe Texas Law School argued that its affirm
the more accurate discrimination between valuable and was justified, even under a strict scrutiny
invidious policies that greater flexibility would allow. among other things, affirmative action w
Supreme Court justices have __-___^_^_-^= _-_?^??-?-??~ order to produce a racially
disagreed for many years about "O'Connor wrote there j be many reasons why diverse student body ? the
night
whether to abandon the levels- a particular race wasierrepresented
urn in a particu- ?oal &** Powell had approved
ot an permissible aim ofgov- 'm Bakke- But *e judges said
of-scrutiny approach for affirma- \ar industry, and it was
five action and, if not, about emment to pursue racial
diversity for its own sake." && Croson and other cases
which level to choose. In two ==^=^= - had in effect overruled

Powell's principle.
cases, the Court tried to solve the problem by definingThese decisions
an had established the n
"intermediate" level of scrutiny, whichrule
requires
that no that an affir?
state institution may use a racial classification
mative action plan be shown to serve an
any "important"
purpose except to but not the continuing effects of
remedy
necessarily a "compelling" interest. ownBut
direct or
in indirect
recentdiscrimination.
cases, The law school could

not satisfyby
chiefly through a series of opinions written thatJustice
test, the judges said, because it had ceased
Sandra
Day O'Connor, the Court has decided discriminating
that all racial classifi?
against minorities many years ago. Are those
judges right
cations, including those that are apparently that Crosonto
designed andfavor
later cases have had that dra?
rather than injure suspect groups, are matic and devastating
subject to strict consequence?
scruti? That is a crucial ques?
ny. In 1986, in the Croson case, the tion
Court
for thestruck down
future of American a
education and society, and it
Richmond, Virginia, city council plan isthat
important that the public
required city understand
con? the actual force of
tractors to subcontract at least 30 these
percent of precedents.
Supreme Court the dollar
amount of any contract to minority-owned
In fact the
firms.
scrutinyRichmond
test, as it has often been formulated in
called its plan "remedial" and said it textbooks
had adopted
and judicial the plan
opinions, can be interpreted in two
very different ways.by
"for the purpose of promoting wider participation Oneminor?
of these (which I shall call the
"overriding necessity"
ity business enterprises in the construction of public version) supports the Fifth Circuit
proj?
ects." judges' opinion that the Supreme Court has already in effect
O'Connor ruled that Richmond could
declaredproperly claim action
all university affirmative a unconstitutional.
The continuing
"compelling" interest in rectifying the other (which I shall call the "rebuttal"
effects of version) refutes
past discrimination only if it had itselfthat opinion.
been the When we inspect
author of the
therecent Supreme Court
injustice, either directly, by its own discriminatory
decisions that the Fifth practices,
Circuit judges cited with the distinc?
or "as a 'passive participant' in a system of racial
tion between these two exclusion
interpretations of strict scrutiny in
practiced by elements of the local construction
mind, we find that industry";
though three of the present Supreme
and she held that the city had not shown
Court justices
that ? Chief
its Justice
plan Rehnquist
was and Justices Scalia
and Thomas
carefully tailored to rectify only the effects of? prefer the overriding-necessity
its own direct version,
O'Connor's strict
or passive discrimination. It could not satisfy key opinions presuppose the rebuttal ver-
scrutiny,

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 DWORKIN ON AFFIRMATIVE ACTION

sion.We also find that the rebuttal version much better flexible
fits than the overriding-necessity version, because
the opinions of the five remaining justices. whether an institution is able to rebut all suspicion by point?
The two versions are based on strikingly different assump?
ing to some legitimate goal or interest that its racial classifi?
tions about the constitutional status of racial classifications.
cation serves depends not just on the intrinsic urgency of that
goal, considered abstractly, but on all the concrete circum?
According to the first version, that of overriding necessity,
any racial classification imposed by any branch of govern?
stances. It depends, among other things, on whether the goal
ment for any purpose whatever automatically violates
hasthe
been part of the institution's traditional responsibilities
? for example, diversity among university students ?
equal protection clause in principle. A racial classification
can therefore be tolerated only if it is absolutely necessary
whether the classification seems carefully designed to serve
thatits
either as the only available means for that branch to end goal, whether the institution might have other, less
respectable, motives for what it has done, and on any other
own past and continuing racial discrimination, or to forestall
factors that might arouse or quiet suspicion given all the
some danger of such dramatic urgency ? in Justice Scalia's
words, "a social emergency ris- -__=^_^_====__
____^^ facts of the case. So a Supreme
riorities in a law school does Court decision that Richmond
ing to the level of imminent "Underrepresentationofmi
danger to life and limb" ? that not present andanger
imminent
to life and limb." could not satisfy strict scrutiny
we must overlook a grave con- ^^^^^^^^^^^^ ^^^^^^=^====^=. by declaring that it was aiming
to improve racial diversity in the construction industry
stitutional wrong in order to avoid that danger. If the Croson
would
decision is properly understood as endorsing that version of not entail, or even strongly suggest, that the Texas
the strict scrutiny test, then the Fifth Circuit judgesLaw
were
School could not satisfy that test by pointing out that its
admissions policies improve racial diversity in its class?
right. Racial diversity in a student body may be an important
academic and social goal, but pursuing that goal would not The grounds and character of suspicion might be so
rooms.
justify overlooking a serious violation of the Fourteenth
different in the two cases that a goal that fails to rebut the
Amendment. Underrepresentation of minorities in a suspicion
law in one case would not fail in the other.
school class does not present an "imminent danger to The
life rebuttal reading is much easier to justify on constitu?
and limb." tional principle than the overriding-necessity reading. The
The second, rebuttal, version of the strict scrutiny testlatter
rests assumes that the equal protection clause automatically
on very different premises. It does not presuppose that forbids
every all racial classifications no matter what purposes
racial classification violates the Fourteenth Amendment,
they serve, and there is no warrant for that understanding in
anyno
even in principle, and it therefore does not assume that plausible theory of constitutional interpretation. The
racial classification is tolerable unless it is required byFourteenth
some Amendment does not mention race, and we have
no reason to think that those who drafted and endorsed that
emergency sufficiently grave to justify overlooking a consti?
tutional wrong. It assumes that racial classifications violate
amendment meant to forbid all racial classifications outright.
On the contrary, many of them voted for and endorsed a
the equal protection clause only when they have been gener?
variety of racial classifications, including even racial segre?
ated by the unacceptable attitudes of prejudice or stereotyp?
ing that the clause outlaws. But it also supposes that gation
since in public schools.
race has so often proved a ground of prejudiceItand
is true that the equal protection clause lays down a gen?
favoritism, it is a wise constitutional strategy to impose a
eral principle of political morality, and that its contemporary
interpreters
strict burden of proof on any institution employing such a must make moral judgments if they are to
classification, by demanding that the institution produceremain
evi? faithful to that general principle. If racial classifica?
tionstowere inherently morally wrong, then they might well
dence of a proper motive that is sufficiently compelling
bewere
rebut any realistic suspicion that unacceptable motives deemed unconstitutional for that reason. But racial classi?

actually responsible. fications are not inherently wrong, any more than are any
This rebuttal version is much more demanding thanother
the classifications based on physical or genetically
sliding-scale test I said that I prefer, because the rebuttal
grounded
ver? properties. The rebuttal version of the strict scruti?
sion sets the standard of proof very high. But it is muchny test is therefore the strongest version that the text and
more

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 THE JOURNAL OF BLACKS IN HIGHER EDUCATION

point of the Constitution can plausibly be thought to author?

In this case, blacks constitute approximately 50 percent of the
ize: if the circumstances of some otherwise lawful govern? population of the city of Richmond. Five of the nine seats on the
ment action that employs racial criteria are such as to rebut city council are held by blacks. The concern that a political major?
ity will more easily act to the disadvantage of a minority [on the
all genuine trace of suspicion that improper motives have basis of] unwarranted assumptions or incomplete facts would
been at work, the Court has no license for intervening to halt seem to militate for, not against, the application of heightened
that action. judicial scrutiny in this case.

The three justices I cited ? Scalia, Rehnquist, and Thomas She rejected the city's claim, that is, not through a blanket
? have nevertheless indicated that they will insist on some? ruling that none of the interests it cited could ever be deemed
thing like the overriding-necessity reading. In his concurring compelling, in any circumstances, but because citing those
opinion in the Croson case, Scalia, for example, said that the interests was not enough to dispel all trace of the suspicion
only interest he would recognize as compelling, apart from raised by other features of the
the "life and limb" emergency, ============ actual circumstances. Rich-
is a community's interest in "University admissionsfey
polkare not set by politicians mon#s plan gave preference,
eliminating "their own mainte- who might hope to court
ites v
of a racial bloc but by for example? not only t0 local
nance of a system of unlawful faculty members, who ar running for office." minority firms, for whose fate
* not
racial classification." But there ^^^^^^-^^^^^^-^
it might plausibly have taken
is ample evidence that the six other current some
justices
civic?responsibility,
so far but to firms controlled by "black,
as they would subject affirmative action to strict scrutiny at
Spanish-speaking, Oriental, Indian, Eskimo, or Aleut" peo?
all ? would prefer a reading much closer to the rebuttal in
ple anywhere one.
the nation. That alone left room for suspi?
O'Connor's Croson opinion was starkly different
cion that from
Richmond was not pursuing a realistic civic pur?
Scalia's. True, she said that "classifications based
pose on race
important enough to justify a significant deviation from
carry a danger of stigmatic harm. Unless they are strictly
the normally wise rule, intended to protect the city from ille?
reserved for remedial settings, they may in fact promote
gitimate favoritism of all kinds, that contracts should be
notions of racial inferiority and lead to a politics
awarded toof
theracial
lowest bidder. 'The random inclusion of
hostility." But that is carefully guarded language ? "may"
racial groups that, as a practical matter, may never have suf?
is not "will," and the River study suggests that O'Connor's
fered from discrimination in the construction industry in
concern was not justified in the case of higher education
Richmond suggests? that perhaps the city's purpose was not
and it is best understood as explaining why in racial classifica?
fact to remedy past discrimination," O'Connor said.
tions that are not remedial in the narrowest sense must be
In her later opinion in the Adarand case (which held that
subjected to particularly careful examination. the Small Business Administration's regulations providing
In any case, it would certainly be wrong to conclude that special benefits to business controlled by, among others,
O'Connor meant that no institution could ever use racial clas?
"black, Hispanic, Asian Pacific, Subcontinent Asian, and
sifications except in that narrowly remedial way. For she made Native-Americans," are subject to the strict scrutiny test),
plain that the strict scrutiny she proposed was not intended to O'Connor was even more explicit in disclaiming any
replace a careful, case-by-case examination, designed to mechanical understanding of that test. She reacted strongly
"smoke out" illegitimate uses of race, with a flat, mechanical to the suggestion that her approach could not discriminate
rule striking down all plans that did not meet a simple a priori between invidious and genuinely benign discrimination:
test. "Absent searching judicial inquiry into the justification strict scrutiny, she insisted, does "take 'relevant differences'
for such race-based measures," she said, "there is simply no into account ? indeed, that is its fundamental purpose," and
way of determining what classifications are 'benign' or 'reme?
does not "treat dissimilar race-based decisions as though they
dial' and what classifications are in fact motivated by illegiti?
were equally objectionable"... To the contrary, it evaluates care?
mate notions of racial inferiority or simple racial politics." fully all governmental race-based decisions in order to decide
O'Connor took special pains to point out the features of the which are constitutionally objectionable and which are not. By
requiring strict scrutiny of racial classifications, we require courts
Richmond plan which, in her view, invited the suspicion that to make sure that a governmental classification based on race ...
the plan was indeed motivated by "simple racial politics." is legitimate.

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 DWORKIN ON AFFIRMATIVE ACTION

commentators now predict, even on a less mechanical,

"Finally," she added, "we wish to dispel the notion that
rebuttal reading of strict scrutiny.
strict scrutiny is 'strict in theory, but fatal in fact.' The unhap?
So we must ask whether and how university affirmative
py persistence of both the practice and the lingering effects
action plans can meet a strict scrutiny test construed in that
of racial discrimination against minority groups in this coun?
way. The River study suggests two main justifying purposes
try is an unfortunate reality, and government is not disquali?
fied from acting in response to it." for race-sensitive admissions tests: the universities' own

Five other justices of the present court have been even

need for racial diversity in their student bodies, and the com?
more explicit than O'Connor in rejecting any mechanical
munity's need for a larger presence of minority members in
version of strict scrutiny In his concurring opinion in
important political, business, and professional roles. Are
Croson, Justice Stevens said that racial classifications should
either of these needs sufficiently "compelling" to justify the
use
be judged in terms of their impact on the future, and heof race as one factor among many in evaluating appli?
expressly rejected any implication that "a governmental
cants? Does the record rebut any scintilla of reasonable sus?
decision that rests on a racial classification is never permis?
picion that the schools surveyed in the River study have used
race for illegitimate purposes?
sible except as a remedy for a past wrong." Justice Kennedy,
Powell himself insisted, in Bakke, that affirmative action
in his concurring opinion in the case, conceded that Scalia's
plans were subject to strict scrutiny, and his decision that
position, which "would strike down all preferences which
are not necessary remedies to victims of unlawful discrimi?
universities may seek racial diversity was therefore a ruling
nation, would serve important ====================
======================== that diversity was a sufficiently
structural goals, as it would "77ie Bakke principle, i over 20 years, compelling interest to survive
i force for
eliminate the necessity for remains good cc nstitutionallaw." that scrutiny. It is true that
courts to pass upon each racial ,============= ================== O'Connor has rejected a diver?
preference that is enacted." Nevertheless, Kennedy said, hesity justification in other contexts, not only in Croson, but in
believed that so rigid a policy was unnecessary, and pre? a dissenting opinion in the Metro Broadcasting case, in
ferred what he called O'Connor's "less absolute rule" that which the Supreme Court sustained policies of the Federal
racial preferences must face "the most rigorous scrutiny." Communications Commission that gave preference to
Justices Souter, Ginsburg, and Breyer all dissented in the minority-owned firms in applications for licenses for new
Adarand case, along with Stevens. Souter wrote that "the radio and television stations ? the FCC claimed that such
Court has long accepted the view that constitutional author? preferences were necessary in order to improve diversity of
ity to remedy past discrimination is not limited to the power viewpoint in programming. But neither of these O'Connor
to forbid its continuation, but extends to eliminating those opinions forecloses allowing universities to use racial classi?
effects that would otherwise persist." Ginsburg, in an opin? fications to produce racial diversity in the classroom.
ion Breyer joined, emphasized her view that the Court The overriding question, for a rebuttal reading of strict
should now be using strict scrutiny not mechanically, but as scrutiny, is whether an institution's appeal to diversity is suf?
an aid to discovering actual legislative motives that are ille? ficient to dispel any genuine trace of suspicion that it has
gitimate because they offend the equal concern required by acted out of constitutionally forbidden motives. Richmond's
the equal protection clause. The strict scrutiny test, as appeal to diversity was compromised not only by the factors
defined in O'Connor's majority opinion, Ginsburg said, is a I mentioned earlier, but because diversity has not been a tra?
device "to ferret out classifications in reality malign, but ditional goal of officials in charge of awarding municipal
masquerading as benign." construction contracts. On the contrary, a city that claimed,
So the two-judge opinion in Hopwood was wrong in say, geographical diversity as a reason for denying construc?
assuming that the Court has already adopted a mechanical tion contracts to the lowest bidders would raise deep suspi?
strict scrutiny test that makes university affirmative action cion of corruption. The FCC regulations that O'Connor con?
plans in the Bakke mold automatically unconstitutional. It demned in her Metro Broadcasting dissent were open, as she
does not follow, however, that the Court will not strike down emphasized, to a grave though different kind of suspicion:
race-sensitive admission standards, in the test case that many the argument that diversity in ownership is necessary to

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 THE JOURNAL OF BLACKS IN HIGHER EDUCATION

achieve diversity in broadcasting, she said, relied on racialthe FCC did, on any presumed connection between race and
stereotypes because it assumed that people's "race or ethnic? belief, conviction, taste, culture, or attitude.
ity determines how they act or think." They seek racial diversity because race is itself important,
O'Connor argued that the asserted interest in diversity ofunfortunately but inescapably, in contemporary America: It is
programming is, in any case, "too amorphous, too insub? vital that students of each race meet and work with, not just
stantial" to rule out any possibility of racial preferences orother students with other attitudes or cultures, but students
prejudices. The FCC, she said, might, under cover of this who are in fact of a different race. Nor would the courts be
alleged interest, identify a "black" or "Asian" or "Arab"risking open-ended and indiscriminate racial preferences by
viewpoint, and then deny licenses to races or ethnic groupscontinuing to permit affirmative action on the Bakke model.
it deemed less likely to present the favored view. She partic?Universities have used such programs judiciously for a third
ularly feared that recognizing a r==================-?____=______ of a century, with no tendency to
iche race meet and work, not expand them beyond sensible
general interest in diversity (Tt is vital that students of
er attitudes
would allow great and indis- just other students with otl or cultures, but proportions.
criminate use of racial classifi- with students who are ir
fact of a different race." These institutions have, more-
cations not just for particular ^===i=^===^===. ? over, a crucial stake in their aca?
purposes and a limited time, but for all purposes and for alldemic reputations, both absolutely and relative to other co
time. Because it is impossible to define a particular racial parable institutions, that would check any desire signific
viewpoint, or to assess how diverse one viewpoint is fromly to expand an admissions policy or curriculum that mi
another, she said, "Members of any racial or ethnic group, threaten that reputation. Nor is there any genuine risk
race-sensitive admissions programs will be used as a pr
whether now preferred under the FCC's policy or not, may
find themselves politically out of fashion and subject to dis?tense for disfavoring any other particular group of ap
advantageous but 'benign' discrimination.'' cants. Any suspicion of that could be tested using statis
Universities are in a much stronger position thanmeans like those used in the River study, by analyzing
Richmond or the FCC was to dispel any suspicion that theyretrospectively rejected students to see whether they w
seek racial diversity for improper underlying motives or ondisproportionately members of any suspect group.
stereotypical assumptions. University admissions policies There is ample evidence, moreover, that O'Connor, as w
are not set by politicians, who might hope to court the votes as several other members of the present Court, has alre
of a racial bloc, but by faculty members, who are not mnningaccepted that the search for racial diversity among stud
for office. Their interest in diversity is not novel or unusual,is a compelling interest that survives strict scrutiny. In 1
as Richmond's was, but traditional and recognized: no one in the Wygant case, the Supreme Court struck dow
disputes that large, mainly white universities have a socialMichigan school board's collective bargaining agreem
and educational responsibility to seek a student body that isthat gave minority schoolteachers special protection aga
diverse in many ways, and any such university that aban?layoffs: it rejected the school board's claim that its interes
doned that aim altogether would be behaving irresponsibly.correcting the effects of past discrimination in the com
Elite universities believe that it would now be irrational to nity at large, or in providing black faculty "role mode
seek diversity in geographical origin, in social class, and in with whom black students might identify, justified this r
cultural orientation, and not also to seek racial diversity. classification. O'Connor wrote a separate opinion in wh
Indeed, their failure to seek the latter dimension of diversi? she noted that the board had not claimed that it had acted

ty as well would make their general concern with diversity protect racial diversity on its faculty, and that the Court
seem arbitrary. They have decided, and the River study therefore not to be understood to have ruled out that inte

amply confirms their view, that they cannot achieve racial
diversity indirectly by relying on economic class as a proxy
for race, or by using otherwise less efficient means to the
hoped-for end. Any such policy would be not only disingen?
uous but harmful. Nor do universities rely, as O'Connor said
as compelling. "Although its precise contours are unce
tain," she said, "a state interest in the promotion of r
diversity has been found sufficiently 'compelling,' at lea
the context of higher education, to support the use of r
considerations in furthering that interest."

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 DWORKIN ON AFFIRMATIVE ACTION

O'Connor has several times, moreover, cited Powell's

? between backward-looking justifications of racial classi?
fications as compensatory and forward-looking justifica?
Bakke opinion, which declared diversity in higher education
a compelling interest, as authority for her view that any
tions that argue that such classifications may, in some cir?
racial classification must be subjected to strict scrutiny. She
cumstances, be in the general interest of the community as a
whole.
would hardly rely on that opinion with such force if she
thought that Powell did not himself understand the implica?
Compensatory justifications suppose that affirmative action
tions of his strict scrutiny approach, or intended to layisdown,
necessary, as Scalia put it, to "make up" to minorities for
under that name, a different doctrine from the one fordamage
whichdone to their race or class in the past, and he was right
she cited his authority. to point out the mistake in supposing that one race "owes"
another compensation. But universities do not use race-sensi?
The argument is therefore strong that the Bakke principle,
tive
in force for over 20 years, remains good constitutional admission standards to compensate either individuals or
law,
and that American colleges and =^==== ================ groups: affirmative action is a
universities may continue to "It would be wrong toO'Connor
(de that conch meant that forward-looking, not a back-
rely on that principle to justify no institution ise racial
could classifications."
ever i ward-looking, enterprise, and
using race-sensitive admissions ================= ================= the minority students whom it
policies to secure a diverse student body. If I were defending benefits have not necessarily been victims, as individuals, of
such schemes in the courts, I would certainly emphasize that any distinct injustice in the past. Great universities hope to
interest in student diversity, which seems enough, on its train more blacks and other minority students not to repay
own, to ensure that the programs survive strict scrutiny. I them for past injustice, but to make the future better for every?
must add, however, that I believe that the other institutional one by helping to lift a curse that the past laid on us all.
interest I mentioned ? helping to redress the still-deplorable O'Connor and other justices have worried that any broad
absence of blacks from key positions in government, poli? and general remedial justification for affirmative action is too
tics, business, and the professions ? is at least an equally "amorphous" and "open-ended" because it would license
important one that should also be recognized as sufficiently racial preferences until every industry or social or profes?
compelling to sustain race-sensitive admissions policies. sional stratum had the same racial and ethnic composition as
One of the gravest problems of American society is the de the name as a whole. But however genuine or inflated that
facto racial stratification that has largely excluded blacks and concern might be as a worry about the consequences of gov?
other minorities from the highest ranks of power, wealth, and ernment-imposed hiring or contracting regulations, it is dis?
prestige; and past racial discrimination, as well as the vicious tinctly out of place as an objection to university affirmative
circle that robs black children of successful black leaders to action plans. If any branch of government ? whether
emulate, has contributed substantially to that stratification. Congress or a local city council ? requires employers or
Nevertheless, many statements sprinkled throughout the var? contractors to hire a quota of black employees or to set aside
ious Supreme Court opinions I have been discussing might a quota of contracts for black firms, its decision ensures a par?
well be read as hostile to that further, and different, justifica? ticular racial representation in some segment of employment
tion of race-sensitive admissions policies, including Powell's or industry. No more natural process of decision making can
statement, in Bakke, that medical schools may not use affir? alter or shape that racial structure so long as the government's
mative action just in order to increase the number of black program is in place. In such cases, government, and only
doctors. government, decides how many members of each of the
Several of the justices have declared that racial classifica? racial or ethnic groups it designates will fill which jobs in
tions cannot be justified as helping to cure the lingering which sectors or roles or offices. Judges who are particularly
effects of past "societal discrimination," and the Wygant sensitive to the danger that some of these decisions might be
decision rejected the claim that they can be justified as pro? made out of improper motives will be reluctant to accept so
viding "role models" for black children. It might be, howev? broad a justification for them as the claim that they are nec?
er, that these statements have not paid sufficient attention to essary to prevent excluding one or another race from power,
the distinction that Justice Stevens has several times made wealth, and prestige.

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 THE JOURNAL OF BLACKS IN HIGHER EDUCATION
But colleges, universities, and professional schools use
race-sensitive standards not in response to any central gov?
ernment mandate but through individual decisions by indi?
vidual schools. They act, not to fix how many members of
which races will occupy what roles in the overall economy Editor's Note: The following transcript is from a 1997 instruc?
and polity, which is in any case beyond their power, but only
to increase the number of blacks and other minorities who
are in the pool from which other citizens ? employers, part?
ners, patients, clients, voters, and colleagues acting in their
own interests and for their own purposes ? will choose
employees, doctors, lawyers, and public officials in the nor?
mal way.
"Affirmative action in universities makes the eventual
economic and social structure of the community not more
artificial but less so; it produces no balkanization, but
helps to dissolve the balkanization now sadly in place."
The distribution of position and power that affirmative
action helps to achieve, that is, flows and changes naturally
in accordance with millions of choices that people make for
themselves. If the policy works to improve the overall posi?
tion of any minority ? as the River study suggests it has
helped to improve the position of blacks ? it does so only
because other people have chosen to exploit the results of
that policy: the greater range and variety of graduates with
the motive, self-respect, and training to contribute effective?
ly to their lives. Affirmative action in universities, in that
way, makes the eventual economic and social structure of
the community not more artificial but less so; it produces no
balkanization, but helps to dissolve the balkanization now
sadly in place.
If the justices recognize this aspect of what our best uni?
versities aim to do, as well as their academic need for edu?
cational diversity, then they will have served us particularly
well. They will have acted not just as judges allowing a cru?
cial educational initiative to continue, but as teachers helping
to explain to the nation the true and continuing costs to
everyone of our racial past, and the distinct promise of an
educational policy that can help us all to achieve, if we real?
ly want it, a more perfect union. jjbhe|
This article is adapted from an essay in Professor Dworkin's Sovereign Virtue:
The Theory and Practice of Equality (Cambridge, Mass: Harvard University
Press, 2000). Copyright ? 2000 by Ronald Dworkin. Reprinted with permis?
*The transcript of the McMahon videotapes was first reported in Harper's
sion of Harvard University Press.
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When Blacks Serve as Jurors:
A Training Manual for District Attorneys
"You don't want these people on your jury."
tional videotape for lawyers prepared by Jack McMahon, a for?
mer assistant district attorney in Philadelphia. The transcript of
the training manual was entered into evidence in the appeals of
several capital crime cases for the purpose of showing that the
district attorney's office illegally used race as a factor in making
its jury selection, a practice ruled unconstitutional by the U.S.
Supreme Court in 1986.*
;' Tury selection is probably the sin-
J fimportant part of the
/\^m*^^^^ *J ?le most
/ \ ? /\ case. Preparation, evidence, witness-
^?^ I / \ es, statements don't mean anything
M ^"^ unless you have a good jury. It's the
most important aspect, yet it's the
most unscientific, the most difficult to learn. All I can tell
you is, play by certain rules and don't bend them and don't
change them.
"Case law says that the object of selecting a jury is to get
one that's competent, fair, and impartial. Well, that's ridicu?
lous. You're not trying to get that. If you go in there thinking
you're some noble civil libertarian, you'll lose. You're there
to win, and the only way to do that is to get jurors that are
unfair and likely to convict. And if you think that it's some
noble thing, that it's some esoteric game, you're wrong.
"Let's face it, blacks from the low-income areas are less
likely to convict. There is a resentment of law enforcement,
there's a resentment of authority, and, as a result, you don't
want these people on your jury. And it may appear as if
you're a racist or whatnot, but you are just being realistic.
"You do not want smart people. I wish you could ask
everyone's IQ; if you could know their IQ, you could pick a
great jury. You don't want smart people, because smart peo?
ple will analyze the hell out of your case. In selecting blacks,
you don't want the real educated ones. This goes across the
board, all races. If you're gonna take blacks, you want older
blacks. Older black men are very good. A well-dressed 72-
year-old black man is a great juror. I've seen DAs who'll
strike him because it's like: "Ooooooh, he's black. I've gotta
get rid of him," but these people, in my experience, are very
good jurors. They're from a different era, and they have a dif?
ferent respect for the law.
"The other thing is, blacks from the South are excellent. I
don't think you'll ever lose with blacks from South Carolina.
They're dynamite. They just have a different way of living
down there, a different philosophy They're law and order,
and they're on the cop's side."
magazine, July 2000.
SUMMER 2000