Melvin I. Urofsky - The affirmative action puzzle: A Living History from Reconstruction to Today

The story is told that in a small shtetl in eastern Europe, two peasants got into a fight, and decided to take the matter to the rabbi to resolve the issue. The first farmer went into the rabbis study, poured his heart out, and when he finished, the rabbi said, My son, you are right.

Then the second man came in, and with equal fervor told his story, at the end of which the rabbi said, My son, you are right.

As soon as the second man went out the door, his wife, who had been listening to all this, said in exasperation, How could you do this? How could you tell both men that each is right?

To which the rabbi replied, My dear, you are also right.

This anecdote is the clue to my own feelings about affirmative action. Over a quarter century ago, I wrote a book about the only case the Supreme Court has ever decided concerning affirmative action for women, and I began that study with the same story. I was conflicted when I finished writing it and to some extent remain so to this day. On the one hand, only a bigot would oppose opening wide the doors of opportunity to groups that had previously been excluded because of race, ethnicity, gender, or disability. Having said that, I believe the real question is how to achieve this goal. There are many ways that corporations that once had lily-white male workforces have been able to develop plans to recruit capable women and minority members to work for them, and in doing so tapped into resources of talent they had previously ignored. Other firms, however, took what they thought would be the easy way, setting up quotas for how many African Americans they would hire, how many women, how many Hispanics, and so on. The use of quotas, even if the firms often used the euphemism of goals, offended many people, and as we shall see, this opposition ran across the political spectrum, from liberals to conservatives.

Opposition to affirmative action proved still stronger when colleges, universities, and professional schools adopted numbers-driven plans, even after they rephrased their goal from affirmative action to compensate for past discrimination to programs intended to achieve current diversity in their classrooms. As someone who has taught at the college and university level for many years, I value diversity, and I and many other teachers could tell countless tales about how much better a class can be when there are people in it who personally relate to the issues under discussion.

While the goal of diversity is praiseworthy, how one gets there matters a great deal. Some schools, like some corporations, managed the process carefully, while others, at least initially, just set up quotas. In public universities, this constituted state action, and thus opened the schools to lawsuits under the Equal Protection Clause of the Fourteenth Amendment. Here again, affirmative action, even if called diversity, aroused both support and condemnation that ranged from stalwart liberals to equally stalwart conservatives. It also split longtime allies, such as the Jewish community and its longtime support of African Americans seeking civil rights.

Ed Koch, the three-time mayor of New York (19781989), is a good example of how one could be conflicted about such programs. Peter L. Zimroth, who served as corporate counsel in Kochs administration, recalled,

Koch deeply believed several things. One is that the whole idea of quotas was an anathema. He was a poor, Jewish person growing up in the city. He believed, I think, that people, anybody, who had the drive and the will to accomplish something had a fair chance to accomplish it. He saw the way quotas kept people down, so he had a very strong opposition to quotas; I think he believed it would diminish the achievements of people who could achieve. If the currency was that anybody who was black or Hispanic got a job through affirmative action, it would just debase their achievements. On the other side, I think he also believed it was a necessity, both politically and morally, to have a diverse government and have a city where there were, in fact, opportunities; that you had to make opportunities for certain people.Both were sincerely held beliefs.

Unlike many authors on this subject, I have not attempted to make a case for or against affirmative action; this is not a polemic on either side. What I have tried to do is not only provide a historical context but also look at how affirmative action affected politics, the economy, higher education, the law, and the groups involved. While we normally associate African Americans with affirmative action and diversity, women and other racial and ethnic minorities have also played a significant role, and sometimes the goals of one group have conflicted with those of another. Who benefited and who suffered is not an easy question, nor is one that asks whether affirmative action succeeded. Similarly, what effect did affirmative action have on its intended beneficiariespeople of color, women, the disabled? The answer in all three cases depends on whom you ask. For example, both Clarence Thomas and Sonia Sotomayor were admitted to the Yale Law School under its affirmative action program. For many years, Justice Thomas claimed that the experience humiliated him, while Justice Sotomayor praised it for giving her a chance she might not have otherwise had. There are, as I said, arguments on all sides. The subject itself is a great puzzle.