In the late Spring not so very long ago, Yang-pat Au a 17-year-old from San Jose, California received a thin letter in the mail that every high school senior dreads. It was a rejection from his college of choice, the University of California at Berkeley. That someone with Au's record — first in his class, straight As, 98th percentile SAT scores, Junior Achievement, two varsity letters, a seat on the Student Council, and numerous awards and scholarships — should be rejected suggests that Berkeley's admissions standards must be very high indeed.
And so they are. But high standards alone do not explain Au's rejection, because many hundreds of such students with less impressive credentials were admitted that same year.1
Every year hundreds of students are admitted to every University of California undergraduate campus and professional school, whose qualifications fall well short of those of many other hundreds of students who are not so lucky. Academic credentials are not the only, or even most important, standard of admission.
Similarly puzzling things happen outside the academic world. Take, for instance, the experience of Randy Perch. Perch, who owns a construction firm in Colorado Springs, submitted the low bid on a project to build the guardrails for a federal highway. But he was not awarded the contract.
Why not? Because unlike most clients of contractors, the U.S. Department of Transportation does not consider a competitive bid to be the prime consideration for awarding jobs.
Or consider Danny O'Connor. A member of the Memphis Police department since 1975, O'Connor put his name in for promotion to sergeant in 1988. Out of over 200 aspirants, only the top 75 would be promoted that year. O'Connor's rank, based on his combined score from a written exam, an interview, seniority and career performance, was 56, yet he was not promoted.
Why not? Because the department does not rely solely on a candidate's performance ranking to decide who gets promotes and who does not.
What happened in all of these cases? Au, Perch and O'Connor are were victims — just three of countless others — of a policy known as "Affirmative Action," a euphemism bold even by the loose standards of public relations firms and politicians.
Affirmative action is, or is supposed to be, a systematic effort by governments and private organizations to help "historically underrepresented groups" participate more fully in mainstream society — especially in employment and education. The phrase "historically under-represented groups" is a code for racial and ethnic groups favored by affirmative action's proponents and administrators. And it has come to include women, who though not originally part of the affirmative action scheme, have over the years become, as a group, one of its chief beneficiaries.
If the above definition seems vague, that is because it is, and deliberately so. It is what the advocates of affirmative action say when asked what exactly, or even approximately, the policy they so cherish is. But it tells us nothing of how affirmative action actually works, because its workings are embarrassingly inconsistent with principles that the proponents of the policy claim to believe in — like equality before the law and the importance of character, and not skin-color or gender, as the decisive measure of a human being.
How does affirmative action really work? When you or I or anyone seeks some opportunity from the government, or an employer, or a university — such as a job, a promotion, admission to an academic program, a contract, you name it — we will be evaluated, as a matter of official policy, not as individuals according to our personal qualifications or merits, but as members of certain racial, ethnic or gender groups. Members of preferred groups receive preferential treatment.
It didn't start out this way. Affirmative action began life during the height of the Civil Rights Movement as an executive order that directed federal agencies to make an active effort to seek out minorities for positions in the government. Mostly, this consisted of more diverse and far-reaching advertising of federal jobs and more active recruiting tactics.
The thinking behind it was that despite the success of the Civil Rights Movement in finally securing equal rights for all citizens, citizens who had been denied their rights for generations were in no position to participate fully in society. And there can be little doubt that this was indeed true. But unfortunately these well-meaning — and perfectly constitutional — forms of affirmative action did not last long. They quickly gave way to the system we have today, the one that has given us the cases of Yang-pat Au, Randy Perch, Danny O'Connor and countless others.
That system separates applicants or candidates into racial or gender categories before evaluating for college admission, a job, a promotion, or awarding a contract. This is how Yang-pat Au, and many others like him, were treated by the University of California's admissions policy. Although his credentials placed him far above a majority of those admitted to Berkeley that year, his file was not evaluated according to a campus-wide standard of admission, because there is no such thing.
Put simply, the University separates its applicants into nine categories, five of which are based solely on race. The standards of admission for applicants in those five categories are much lower than those for the non-racial categories.2 And they have to be if the University is to meet its goal of enrolling a minimum number of students from each favored racial group.
Since Asian high school students like Au tend to outperform other groups of students, were the admissions policy merit-based (read: fair) Asians would make up a higher percentage of the unversity's undergraduate population, while members of other races, particularly blacks and Hispanics, would see their numbers fall well below administrative "diversity" targets.
These targets — "goals" or "benchmarks," as they are called — are particularly obnoxious and thus carefully disguised and misrepresented. There is a better word for them, a more accurate word, but one that makes affirmative action's defenders cringe: quotas.
For that is what they are. When a university openly proclaims, as the University of California does, that its enrollment must mirror the ethnic breakdown of the state or region from which it draws applicants, that is, quite simply, a quota system. The population of California is about eight percent black. That means that no matter what, a minimum of eight percent of UC's enrollment must be black. If there are not enough black applicants whose academic records are competitive enough to assure their group enrollment at a rate of eight percent of the student body, then some remedy must be found.
That remedy, it turns out, is to lower admissions standards, but only for members of the groups that are not naturally filling their quota. Can anyone imagine selecting the members of a professional sports team, a symphony orchestra or a hospital surgical staff in this manner?
And it's not just the University of California. Cheryl Hopwood, who applied to the University of Texas Law School in 1992, confident that her credentials were up to the school's standards. When she was rejected, her first reaction was surprise coupled with resignation. "The only thing I could think of," she said, "was that the class the school admitted must have been very, very good."
In fact, however, that year's group of applicants was not substantially better than those of years before. Just as in the case of Yang-pat Au, many applicants with credentials far lower than hers were admitted.3
The University of Texas Law School, like almost every law or professional school in the country, attempts to enroll a minimum number of students from certain prefered groups; in particular, school policy mandates that 15 percent of the Law School class must be black and Mexican American.
Since enough members of those groups don't meet this quota through open competition with applicants at large, standards must be — and are — lowered to ensure that the 15 percent target is met. Simple common sense tells us that when you have a finite number of any commodity — in this case seats in an entering class — and you reserve, or "set aside," a portion of it for a favored group, then people not lucky enough to be in that group are bound to be squeezed out on no other basis than their group membership.
And so Cheryl Hopwood, who was not one of the lucky ones, was denied admission to law school while 84 applicants with lower grades and test scores, but who were members of the prefered groups, were admitted.
It is important to understand the significance of dividing people into groups for such purposes. It is nothing less that the denial of the central principle upon which America was founded, and from which all of our laws and institutions radiate, or used to radiate. That is the principle of equality, the equality of each individual citizen before the law.
The Declaration of Independence states that "all men are created equal," but the proponents of quotas would rewrite that famous phrase to say rather that all groups are created equal. So when their material conditions vary, it is seen as a result of racism or policy or both and as such must be remedied by policies directed at the raising up of such afflicted groups, through the granting of special, extra rights. It even gets to the point where already successful or wealthy members of such groups get these same "extra rights."
But in truth it is only individual human beings that are equal, and only in one, very specific sense: they are all equally human beings, with equal human dignity and the equal rights to be governed only with their consent, and to "life, liberty and the pursuit of happiness."
These rights are not guaranteed to groups, because they do not-and cannot-belong to groups. But they do belong to individuals, regardless of race, religion or anything else, and it is the first business of government to secure them. The most famous word ever used to describe this understanding of government is "colorblind." It was coined by Supreme Court Justice John Marshall Harlan in his ringing dissent from the shameful 1897 Plessy decision, in which the court upheld constitutionality of racial segregation.
Clearly, Yang-pat Au and Cheryl Hopwood were not treated according to the principle of colorblindedness. Affirmative action policies explicitly repudiate this principle as outmoded or even pernicious. And the people who administer the policies will go to great lengths to demonstrate their contempt for it.
The examples can get bizarre. James Henry, owner of a Columbus, Ohio, painting company used to do quite a lot of business with the Ohio State University. Not anymore. His first indication that things were changing was in 1983, when he was told that he could not bid on a coming contract, because it was being reserved for bidding by minority firms only.
By 1989, Henry was shut out altogether from bidding on University jobs, because the school had decided that to meet a general 15 percent set aside on all contracting, it would have to impose a 100 percent set aside for painting contracts.4
This is indeed color-consciousness raised to new and offensive levels. But there are even more bizarre cases. And it is true even of such policies that do not require outright quotas, but that nevertheless make legal distinctions along racial group lines. We may call such policies preferences. They differ from quotas only in degree and not in kind; both types of policy are based on the same denial of colorblind justice. Most examples of merely preferential policies have to do with hiring, and especially promotion, or contracting. It is most prevalent in government agencies, particularly police and fire departments.
Danny O'Connor learned this firsthand. He was not promoted because his department decided, in the name of affirmative action, to arbitrarily place a black candidate into every third spot on the list. Seven of the original 75 top candidates were black, but 26 blacks were promoted, at least 19 of whom had a lower ranking than O'Connor.
And as for Randy Perch, the U.S. Department of Transportation very vigilantly enforces a law that requires a certain portion of federal contracting dollars be "set aside" (the government's language) for minority- and women-owned firms. So the job for which Perch submitted the low bid went to a firm that submitted a higher bid but was owned by a member of a government-prefered group.5
But perhaps the most outrageous example of preferential treatment based solely on race is the case of Sharon Taxman, formerly a typing teacher at Piscataway High School in New Jersey. Facing a decline in enrollment in "business education" classes, the school board decided to lay off one teacher. It came down to two teachers, Taxman and Debra Williams, both of whom had been hired at the same time and whose performance records were similar. Taxman was laid off.
Why her and not Williams? Bad luck? Perhaps, if you can ascribe the result of a specific policy to chance: Taxman is white and Williams is black, and the school board figured that, in the interest of affirmative action, it would be more socially responsible to retain the black teacher and let go of the white.
This decision captures the essence of what affirmative action is all about. In dismissing an employee solely on the basis of race, the board followed, to the letter, the contemporary denial of individual rights and equality in favor of the idea of group rights. Goodbye, color-blindedness.
But perhaps that is too hasty. To be sure, the status of colorblindedness in the contemporary justice system is degraded indeed, but recent court decisions, some of them centering on the very cases described in this paper, show rays of hope. Also, more and more people are beginning to understand how patenly unfair quotas and prefences are to individuals and how harmful they are to the rule of law.
This is in no small part due to the prevalence of cases just like those outlined above, and to the increasing public scrutiny such cases are getting. We should hope that they continue to be exposed, lest our nation never return to the one understanding of rights that not only promises but also can actually deliver, liberty and justice for all.
And there is reason to think that we will. It has been said that Americans have "a passion for fairness," and that precisely this passion made the victories of the Civil Rights Movement possible. This is certainly true. But now that passion is being twisted and abused. The government treats its citizens unequally, and in the name of fairness, no less. It should not be able to do this. The fact that it does shows that it no longer respects its own first principles and founding premises.
And if governement does not, there is nothing to stop it from treating people in any respect it wishes, and a people so treated, or even in principle subject to such treatment, are not free.
The fate of free government depends on Americans' "passion for fairness" reasserting itself in the name of equality properly understood, which means bringing about an end to quotas and preferences and all the related double-talk.
1 From Illiberal Education, by Dinesh D'Souza, pp. 24-5.
2 See "Still Choosing by Color' by Michael Lynch, Claremont Institute GSC Briefing #1996-52, pp. 13-14.
3 From Ending Affirmative Action, by Terry Eastland, pp. 3-4.
4 Ibid., p. 4-5; also, Washington Times, February 27, 1995, p. 1.
5 Ibid. p. 4