Good Intentions Don’t Guarantee Good Outcomes

Race-based affirmative action in the US has failed, argues George Clough

Affirmative action, the programme entailing giving those members of a previously disadvantaged minority group a head start in such areas as higher education and employment, is often regarded as synonymous with ‘positive discrimination’.

Arguably, though, affirmative action in the US has in many ways failed: and if it has not yet failed totally, it is doomed to do so by its very nature. The only way not to discriminate on the basis of race is not to discriminate on the basis of race: but affirmative action is racial discrimination, albeit supposedly of the ‘positive’ kind.

Diversity No Excuse

The case of Regents of the University of California v. Bakke in 1978 shows this. Bakke was rejected in favour of black students with far lower scores, in short, discrimination. The Constitution, federal laws and state laws should all be colour blind.

With eight states banning affirmative action, we can at least see that those states do exercise their rights to legislate in the face of discriminatory federal laws. I believe that equality of opportunity brings equality of outcome; the latter does not need to be sought by government, and, despite being sought, it has not been achieved.

The most compelling reason why race-based affirmative action has failed is because its legitimacy was to be measured by how fast it moved society towards a time when it would no longer be needed, in a society in which race no longer mattered. Justice O’Connor argued this when she issued the 25-year ‘limit’ to affirmative action programmes in the Grutter case in 2003.

However by this measure affirmative action is bound to fail, because a programme based on race is very unlikely to move society to a point where race no longer matters. Far from ending racial differences and resentment, affirmative action has but stoked the fires, and kept racial tensions simmering.

Another key point that reinforces these programmes’ failure can be seen in the actions of the Supreme Court. In decisions such as Bakke in 1978, and Adarand Constructors v. Pena (1995), the Court ruled that types of affirmative action programmes are unconstitutional. (but, yes, things might have gone differently had there been a Liberal majority on the Court). And in Ricci v. DeStefano, the Supreme Court ruled that New Haven, Connecticut, had illegally discriminated against white and Hispanic fire-fighters. Do Hispanics not deserve the same preferential treatment, as they too are ‘minorities’?

The American people, too, seem to be tired of this reverse discrimination. In 1997, after California voted in favour of Proposition 209, to ban all affirmative action in the state, the Supreme Court refused to review the case. Washington State followed suit in 1998, Florida under Jeb Bush in 2000, Michigan in 2006, Arizona in 2010 and New Hampshire in 2012. Nebraska banned affirmative action in 2008, during the same election cycle in which the first ever black President was elected.

These decisions were not due to affirmative action having completed its purpose. These states did not get rid of it because it had worked and was no longer necessary. They banned it because, in practice, it was unfair and divisive and was failing miserably in its aim of creating a society where race meant nothing. The federal government has failed to produce racial equality, but that’s an aim which, for government, is unachievable. As the Conservative, black Supreme Court Justice Clarence Thomas said in 1995, “Government cannot make us equal.”

Or consider, as did Christopher Edley, Clinton’s White House assistant charged with reviewing affirmative action in 1994, what came to be called the ‘coalminer’s son’ question. Imagine, if you will, he said, a college admissions board trying to decide between the white son of an Appalachian coal miner, and the African-American son of a successful Pittsburgh neurosurgeon. Why, he asked, should the black applicant in this case get preferential treatment? Why indeed – surely means is a more crucial determinant of eligibilty for state help than race?

A society that offers a helping hand on the basis of race, not means or background, is inherently unfair. Surely, offering assistance to impoverished people, regardless of race, rather than exclusively to racial minorities just for being so, would better help tackle poverty and improve social mobility? And because African-Americans are more likely to be poorer, that would also help racial minorities as well as other people in need of help, rather than basing help on race and race alone.

The fact that the current system gives preferential treatment, not on the basis of need but of ethnicity, makes it utterly unfair, and therefore a failure in its aim. Some states have recognized this, and we can see some state systems getting better results by eliminating preferences for children of alumni and bolstering financial aid. These strategies have led to more racially and economically diverse classes, but, crucually, in a non-racially-discriminative way.

In California, Asian-Americans (still a minority group?) have done well from the ban on affirmative action in the state. In 2011-2012 they made up over a third of University of California entrants. I don’t disagree that affirmative action has to some extent helped minorities, but it has done so in a way that has not eliminated racial tensions, but in fact has helped keep them alive.

Even the American Civil Liberties Union admitted, “How can a provision designed to end discrimination in fact discriminate?” As Bernie Richter put it, “When you deny someone who has earned it and give it to someone else who has not earned it……you create anger and resentment.” Besides, an increase of merely 10%, from 5% to 15%, of black people aged 25-29 graduating university between 1960 and 1995 is not a very big increase over 35 years. Perhaps the increase is low because, as Thomas Sewell observed, preferences primarily benefit minority applicants from middle and upper-class backgrounds, not the disadvantaged.

The strive for equality of outcome directly has failed. Americans have begun to realise that that only through equality of opportunity can you encourage true equality. Government is not the solution. Promoting the idea that race should be fervently taken into account is wrong, just as segregation was morally wrong.

The pendulum can swing too far in either direction. Race-conscious programmes betray Martin Luther King’s dream of a colour-blind community. To repeat – Government cannot make us equal, and the only way not to discriminate on the basis of race is, quite simply, not to discriminate on the basis of race.


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