The Strange Career of Affirmative Action


Hochschild JL. The Strange Career of Affirmative Action. Ohio State Law Journal. 1998;59 (3) :997-1038.

Date Published:

fall 1998

Full Text

 The Strange Career of Affirmative Action

Jennifer  L.  Hochschild

Princeton University

Department of Politics

September 10, 1998


 For special issue on “Twenty Years after Bakke:  The Law and Social Science of Affirmative Action in Higher Education,” Ohio State Law Journal, fall 1998

 My thanks to Peter Furia and Deborah Schildkraut for very helpful research assistance and comments, and to Rodney Hero, Stanley Katz, Nathan Scovronick, and Steven Teles for astute criticisms.

 NOTE: not quite final version.


I can best begin to depict the strange career of affirmative action through a comparison of four quotations:

  I am just curious: is there a difference between Pete Wilson and George Wallace? I am afraid that we do not know the context of today’s existence as black people in America.  George Wallace, in a failing effort, stood in the school house door.  Pete Wilson, in an ascendant effort, is re-establishing the legitimacy of white privilege.  The precipitous decline of black enrollment in higher education in California and Texas is just the tip of an iceberg (Newby 1997).

 This latest ruling by the U.S. Supreme Court is but another knife into the dying corpse that was at one time a living commitment to correcting and abating past disparities that were codified by federal and state statutes in this country… Indeed, the writing is not only in the legal books but it is now of the wall, that the civil rights gains made in the 60’s, 70’s, and for a brief time during the later 80’s, are slipping away like a barrel over Niagara Falls…. That which civil rights warriors fought and dies for is now being cast aside and spat on by those who waited in the weeds to strike at the most opportune moments (Munoz 1997).

 We have momentum, public opinion, and the forces of history solidly on our side. Despite determined opposition, the era of race preferences is coming to an end (Bolick 1998).

 Understand, this [elimination of “race preferences”] is something that is going to happen. It’s not a matter of if. It’s a matter of when.  Beyond being unconstitutional, it’s immoral. Just plain wrong. And the faster we can make it happen, the better off our society will be. So whatever I can do to help hasten that, I will do it (John Uhlmann, of Kansas City, cited in Coleman 1998: 36).

 Disagreements between first two comments and the second two are obvious.  For the first two writers, a robust program of affirmative action is essential to the continuance of the civil rights movement, and more generally to the attainment of racial and ethnic equality in the United States.  But to the second pair, affirmative action is antithetical to the deepest American values of equality and individual merit, a gross distortion of the civil rights movement, and a barrier to attaining racial and ethnic equality.  This article will not explore the substantive and philosophical differences between these positions; many scholars have done so, including some in this volume, and I have other concerns here.

            I seek instead to focus on two characteristics that the two pairs of quotations share, despite their substantive differences.  First, both supporters and opponents of affirmative action are passionately committed to their perspective and concede no moral legitimacy to the other side.  Second, both supporters and opponents believe that affirmative action is going to be eliminated, at least as we know it, in the near future.  I will argue that the first stance is inappropriate and unhelpful, and that the second prediction might be correct but for nonobvious reasons.

 Passionate Conviction:  I will not repeat what I have written elsewhere (Hochschild 1998) about advocates’ intense commitment to one or the other side of the debate over affirmative action, but a few observations are relevant here.  First, over the past three decades very few of the hundreds of writers and speakers on the issue have changed their minds, or even modified their views.[1]  Nathan Glazer (1998: 18) made a very public shift soon after California abolished affirmative action in the public realm:  “In the presence of these conditions [terrible schools in inner cities, family dissolution, the growth of an embittered black underclass], an insistence on color-blindness means the effective exclusion today of African Americans from positions of influence, wealth, and power.  It is not a prospect that any of us can contemplate with equanimity.  We have to rethink affirmative action”[2]

From the other side of the liberal-conservative spectrum, Mother Jones magazine published a series of articles in 1997 questioning its previous support for affirmative action – and was rewarded with excoriation in the letters to the editors’ column over the next few issues (Mother Jones 1997a; 1997b). But these reformulations are as notable for their rarity as for the vehemence with which the apostates are attacked.[3]

The lack of movement by proponents on both sides of the issue is surprising for three reasons.  First, most ordinary citizens do not hold impassioned or extreme views on the subject, and many are willing to change their mind about it.  Survey data show more of a moderate center on affirmative action, one that is shared across races, than either the advocates or the media reflect. Thus, while three-fourths of white Americans consistently agree that blacks should “work their way up... without any special favors,” so do about half of black Americans.  Although 85% or more of whites endorse “ability” rather than “preferential treatment” to determine who gets jobs and college slots, so do at least three-fifths of blacks.  Conversely, fully seven in ten whites (compared with over eight in ten African Americans) favor affirmative action programs “provided there are no rigid quotas.”  Solid majorities in both races endorse special job training and educational assistance for women and people of color, extra efforts to identify and recruit qualified minorities, redrawing of voting districts to ensure minority representation, and other “soft” forms of affirmative action (Steeh and Krysan 1996; Gallup Organization 1995; “Affirmative Action” 1997: 3; Albritton and Fowler 1998: 19).  A day after President Clinton was reelected, two-thirds of Americans agreed that he should “put more emphasis on affirmative action to improve educational and job opportunities for women and minorities” (“Clinton’s Second Term” 1996).

Opinions on certain forms of affirmative action are not only more supportive than typically perceived, but they are also more malleable and less important to most citizens’  political stances than one would imagine from most public discourse about the subject.  One quarter of those who voted for California’s referendum banning affirmative action in 1996 would have preferred a “mend it, don’t end it” option (Lempinen 1996).   Between one-fourth and one-half of self-identified Democrats or liberals in recent polls have expressed either opposition to affirmative action or concerns that it has “gone too far,” or that “blacks and women have taken advantage of it.”[analogous data for Republicans???] (CITE) About a third of white Americans cannot make any association with the phrase, “affirmative action” at all (Steeh and Krysan 1996: 129). In June 1996, as the debate over the subject was heating up in national politics, fewer than one in five whites claimed that affirmative action would be extremely important in deciding their presidential preference (Blendon et al. 1998: 66 [Public Perspective article; get question from POLL].  Exit polls in California the day after Proposition 209 passed found that for neither Republicans nor Democrats “was affirmative action mentioned as one of the top seven issues” (Cain and MacDonald 1997: 12).[4]   Affirmative action, in short, does not typically polarize the public’s attitudes.

A second reason for surprise at the almost-unanimous immobility of advocates’  convictions is the fact that the evidence does not warrant immovable commitment, on either side.  Studies of the effects of affirmative action are surprisingly sparse and very recent.[5]   But the few in existence show that affirmative action works much like most other public policies: it benefits a few people greatly, benefits a larger number somewhat, harms a few, and does not affect the majority of Americans much one way or the other. 

That broad conclusion obtains for hiring and promotion decisions as well as for admission into universities (Reskin 1998; Hochschild 1998; Bowen and Bok 1998). Affirmative action has made a notable difference in employment in the largest firms and in public employment such as fire and police departments, social work, and probably public school teaching  (Holzer and Neumark 1998).  But more and better education, enforcement of laws against wage and employment discrimination, and migration to the north and to urban areas are responsible for most of the reduction in the gaps between blacks’ and whites’ wages and job status over the past four decades (Leonard 1990; Heckman and Payner 1989).

With regard to universities, during the 1980s the most selective four-year colleges and universities were more likely than other institutions of higher education to admit African American and Latino students preferentially. There is no reason to think that energetic affirmative action practices harmed these elite schools; by the end of the decade, their tuition had risen disproportionately compared with that of other universities, as had the number of students applying for admission (Clotfelter 1996).  In nonelite schools, which 80% of college students attend, admission rates for students of different races with similar characteristics were essentially the same (Kane and Dickens 1996; Kane, this volume). 

No systematic evidence shows harm to beneficiaries of affirmative action in either universities or jobs.[6]   And it is difficult to find evidence of harm to identifiable whites beyond the fact that every year many applicants (most of whom are white) do not attain a coveted slot in Harvard’s first-year class or do not receive the promotion that they believe they deserve.  That failure to attain what they wish and perhaps warrant is painful, but it is not a violation of rights or even necessarily of deserts.

If affirmative action does little harm, however, it also does little good where help is most desperately needed – in inner cities and rural communities where some African Americans remain mired in unsafe neighborhoods, substandard housing, atrocious schools, and joblessness.

Finally, one might be surprised at the depth of advocates’ mutual animosity because, at base, proponents of all sides of the debate over affirmative action appeal to the same values – equal opportunity, fairness to all participants, the American dream of success, racial integration.[7]  They clearly differ in their definition of these values, with the chief discrepancy lying in the distinction between “individual rights” and “group rights.”  But that distinction is analytically fuzzy, to say the least, and philosophically it is perfectly possible to favor the pursuit of both kinds of rights.  In fact, most proponents of affirmative action agree that the government should sustain individual rights as well as enhance group rights; similarly, most opponents concur that the government should respect group identities and sensitivities as well as protect individual rights.  Thus in the context of a broad framework of possible values to draw on and potential conflicts among values, the moral debates swirling around the issue of affirmative action do not cut very deep philosophically or normatively. 

In short, the passion with which both proponents and opponents of affirmative action argue their case seems out of proportion to its tangible consequences for most Americans.  It grows instead from the symbolic value of affirmative action for a small proportion of the population.   I seek here not to explain this passion, but instead to show how its roots in symbolic rather than material import  will affect the political future of affirmative action.  That leads me to the second similarity between the two pairs of quotations with which I started – their shared conviction that affirmative action will soon be abolished.

 The Predicted Demise of Affirmative Action:  Voters have had  two chances to decide the fate of public or state-supported affirmative action  – in California where it was abolished via Proposition 209 in November 1996, and in Houston, Texas, where it was retained via Proposition A one year later.  In 25 states beyond California, there has been or currently is anti-affirmative action activity in the electoral arena.[8]  That activity comprises proposals for legislation, state constitutional amendments, and/or propositions for direct citizen votes.  Its purpose is to abolish the practice of affirmative action, sometimes defined as preferential treatment or set-asides, by any public agency or actor.[9]  In eight states, legislators have submitted bills to promote public sector affirmative action.  One such bill passed into law (in Oregon).   I will not consider the pro-affirmative action activity further in this article.  Table 1 identifies the 50 states in terms of their inactivity on this issue, proposed measures to abolish, and bills in support of the public use of affirmative action between 1995 and the summer of 1998. CHANGE OR DROP IF USE ONLY THE MAP

(Table 1 here)

In no state beyond California has the anti-affirmative action measure come close to passage. In none except the state of Washington (where citizens will vote on an initiative in November 1998) is it demonstrably on the way to a final decision.  In four states that have seen anti-affirmative action proposals, the measures died in 1995 or 1996, and have not been revived.[10]

At the national level, several bills have been submitted to the House of Representatives or the Senate over the past few years; few have come to a vote even in committee, and none has come close to passage by either house.

How should we make sense of this history; is California an anomaly, or the precursor of a future that has not quite arrived yet?  All four of the writers whom I quoted at the beginning of this paper, and most commentators on Proposition 209 (until recently) assumed the latter.  Based on electoral and demographic trajectories, I assume the former -- as do an increasing number of other observers. 

 The Electoral Future of Affirmative Action

            A wise economist in public service once warned his audience that, to retain his job, he had learned never to give a number and a date at the same time.  Not being an economist, or in public service, I shall violate this advice and predict that affirmative action will not be defeated at the polls in more than a handful of jurisdictions other than California.   My grounds for that prediction begin with a systematic analysis of which states have experienced anti-affirmative action activity.  It then uses the results of that analysis to point toward a set of explanations for why that activity has not, and arguably will not, generate substantial change in affirmative action laws.[11]

Patterns of Support for Anti-Affirmative Action Measures:  Five (sometimes compound) hypotheses summarize the search for differing patterns between the states with and without anti-affirmative action campaigns in the period 1995-1998:

  • The demographic hypothesis: Anti-affirmative action activity is likely to increase given high and/or rising percentages of non-whites in a state’s population.  

This is the simplest explanation -- that anti-affirmative action activity constitutes a straightforward reaction among whites to the apparent threat implied by “de-Anglicization.”  Related to this general hypothesis are particular hypotheses about levels and trends for state populations of particular non-Anglo groups (the absolute number of blacks in a state, the trends in Asian and Hispanic populations, and so on).

  • The “high profile” states hypothesis:  Anti-affirmative action activity is more likely to occur in populous, urbanized, and/or prosperous states. 

The appearance of anti-affirmative action campaigns in so many populous and prominent (but otherwise diverse) states, including California, Texas, New York, Illinois, Florida, Michigan and Pennsylvania inspired this hypothesis.  Wealthy states might offer slack political and financial resources that can be put to use in an initiative campaign, regardless of the issue. States with large populations might be unusually tempting targets for electoral strategists, especially in presidential campaigns where the electoral college magnifies the importance of the most populous states.  They also offer the greatest chance, arithmetically, for a political entrepreneur to arise to conduct an anti-affirmative action campaign.   Furthermore, states with substantial urban or metropolitan populations might be arenas for heightened racial conflict.

  • The regional hypothesis:  anti-affirmative action activity is likely to be most common in the South and West. 

Although this argument runs counter to the hypothesis about high-profile states, one might expect the most anti-affirmative action activity in the Deep South and Far West, and the least such activity in the liberal Northeast.  The former states are generally the least populous, wealthy, or urbanized.  But they have a long history of state support for racial policies preferred by whites (in the case of the South), or of resistance to government regulation and social policy (in the case of the West). 

  • The institutional hypothesis:  anti-affirmative action activity is more likely to occur in states in which the state constitution allows for direct ballot initiatives. 

Ballot initiatives are only one of the several ways in which anti-affirmative action activity may become state law.  But they uniquely permit opponents of affirmative action to take direct advantage of the fact that most citizens oppose affirmative action when it is associated with preferences or quotas.  Proposals for legislative action, in contrast, must run the gauntlet of legislatures which are well-known to be better suited to halting rather than promoting controversial legislation.

  • The party control hypothesis: anti-affirmative action activity is more likely to occur under unified Republican state governments. 

Other than ballot initiatives, state legislatures are the primary venues for (non-judicial) anti-affirmative action activity.  More such bills are likely to be introduced in states in which the governor is Republican and both houses of the legislature are controlled by the Republican party, for two reasons.  The chance of passing a bill abolishing affirmative action in the public sector is higher, and the majority of voters have already demonstrated their relative conservatism so are less likely to punish promulgators of a conservative bill.

Formal evaluation of these hypotheses is complicated by two factors -- having only 50 observations (one for each state), and having a “dummy” dependent variable (a variable with only two possible values, 0 or 1 based on whether a state had anti-affirmative action activity).[12]   I therefore will first discuss the full range of variables with which anti-affirmative action activity is substantially correlated, and only then present a parsimonious and predictive model of anti-affirmative action activity.[13]

            To evaluate the demographic hypothesis, we first tested for a relationship between anti-affirmative action activity (hereafter “activity”) and the percentage of whites in a state’s population in 1994.  This broad formulation of the hypothesis was weakly confirmed; white population levels show the predicted negative correlation with activity, but only at a moderate magnitude (-.268) and with a borderline degree of statistical significance.  Tests for relationships between activity and percentages of blacks and Hispanics in state populations also generally supported the broad demographic hypothesis.  Correlations for percentages of blacks (.365) and Hispanics (.195) with activity were in the predicted positive direction, and the former was highly statistically significant (the latter was not significant at all).  However, the correlation between anti-affirmative action activity and Asian population levels was negative (-.094), although minimal and not statistically significant.  That result suggests the possibility that whites perceive Asians to be a “model minority” rather than a threat.[14]  Finally, as the demographic hypothesis would predict, we found a positive and significant relationship between 1996 legal immigration levels for each state and anti-affirmative action activity (.338, p = .016), and a positive, though weak, relationship between legal immigration per capita and activity.[15]

We next tested the demographic hypothesis in terms of population trends between 1980 and 1996. We could do this only for states in which a given racial or ethnic group constituted more than 3% of the total population in 1996 because the Census Bureau does not publish trend data for states in which a given group is smaller. Increases in black and, especially, Hispanic populations were both significantly correlated with increased anti-affirmative action activity.[16]   In short, among demographic variables, levels of the black population and trends in the Hispanic population are most closely associated with politically organized opposition to the public use of affirmative action.

            The second hypothesis, on high-profile states, was confirmed more strongly than any of the others at the level of descriptive correlation.  Raw population levels (.453), the degree of metropolitanization (.439) and gross state product (.417) all proved to be strong correlates of anti-affirmative action activity and significant at the .01 level.

The third, regional, hypothesis, receives at most weak statistical support, depending on one’s definition of region.[17]

(insert map here)

The map appears to show that anti-affirmative action activity is particularly common in the deep South and far West.  But the correlation of region with this activity is weak (.214) and not statistically significant (.144).  And actually looking at the map gives one further pause.  Activity in the ostensibly libertarian West occurs not in Idaho and Wyoming, but in Washington, Oregon and California.  Activity is consistent in the deep South, but does not occur in the Virginias or Arkansas.  The purportedly liberal Northeast is less tolerant of affirmative action than the Midwest.   In short, as further analyses show, region is (mostly) trumped by demographic and state size variables.[18]

            The data support the fourth, institutional, hypothesis; the presence of direct initiatives is positively and significantly correlated with anti-affirmative action activity (r = .376; p < .01). Concretely, proposals to abolish the public use of affirmative action have surfaced in fifteen of the twenty states that allow for direct initiatives, and eleven of the thirty remaining states.  Thus one might conclude that the initiative process is close to sufficient, but not necessary, to produce anti-affirmative action activity.

The fifth hypothesis, to my surprise, does not receive support.  Unified Republican control of state governments is either unrelated to or possibly inversely related to anti-affirmative action activity.  As with the regional analysis, looking behind the aggregate statistics is highly illuminating.  In 1995, seven of the fifteen states which enjoyed unified Republican control (as of 1994) saw anti-affirmative action activity in the legislature.  In 1996, only five of the ten analogous states did.  Clearly there was no relationship between the presence of conservative control of the government and the likelihood of proposing this particular conservative policy change. 

On the theory that it might take a longer period of Republican control to build up to anti-affirmative action activity, we examined Republican control in 1990 and 1992, and states in which the Party had enjoyed two or three consecutive two-year periods of unified control.  Table 2 shows the results of that analysis:

 Table 2: Unified Republican Government and Anti-Affirmative Action Activity
















2 terms



3 terms


Pearson r Correlation







Significance (2-tailed)           








Most of these correlations are minimal; nevertheless, all but one is in the opposite direction from that predicted.  If it had any effect at all, unified Republican control of government made anti-affirmative action activity less likely.[19]

            Finally, I used these correlational results in a logistic regression model to efficiently predict whether or not a state engaged in anti-affirmative action activity between 1995 and 1998.  As table 3 shows, seven independent variables show a clear bivariate causal link with anti-affirmative action activity. They are presented here in descending order of magnitude and significance: [20]

 Table 3: All Potential Predictors of State-level Anti-Affirmative Action Activity








Total population



Gross state product



Direct initiative



% black



Hispanic change, 1980-96



Black change, 1980-96




While any of these variables might reasonably be seen as a cause of anti-affirmative action activity, problems of multicollinearity dictate that only a few can go into a parsimonious predictive model.  The three independent variables with the highest bivariate regression coefficients, for example (metropolitanization, population size, and gross state product) are each correlated with each other at a very high level of around 0.9.  This is to be expected, since all three are alternative measures of state prominence.  It is inefficient, however, to include more than one of them in a predictive model.   After a little experimentation (that even included one “perfect” but relatively trivial model -- see note 15) we ended up with the following powerful logistic equation:

                                    Activity = B0 + B1RawPop + B2Initiative + B3Black + B4HispanicChange

Each predictor holds up in the multivariate regression, and the model is jointly very highly significant (p < .0000).[21]  Table 4 provides the precise results of this regression analysis:

 Table 4: Predictors of States with Anti-Affirmative Action Activity, 1995-98.



(standard error)



Total population

5.3 E-07

















% Black









Hispanic change, 1980-96






Perhaps the best way to judge the power of these four predictors is to examine how much they, together, reduce the error that would occur if one made essentially random guesses about whether a state does or does not have activity.   In this case, the error is reduced by 67.5% -- a very high proportion. Put another way, the model  correctly predicts the status of 42 out of 50 states, as compared with a likely prediction of only 25 states if one simply tossed a coin.[22]

 Explaining the Results:  Population Size:  The least self-evident of the four factors that remained in the final regression equation is that of state population (alternatively, gross state product, which had almost the same statistical impact).  I would not have predicted its strong impact compared, say, with the negligible impact of having a unified Republican government.  But in retrospect, several explanations seem plausible.

            The cases of California, Washington, and Houston – the three locations where the effort to abolish public use of affirmative action is being put to a vote – all demonstrate the centrality of one or a few political entrepreneurs[23] in getting the issue on the ballot.  Any state or locality, of course, can produce a skilled political actor with financial resources, time, and a passionate commitment to the issue – but other things being equal, the larger the number of people in a political jurisdiction, the more likely such a person is to emerge.

That factor becomes especially important when coupled with the second of the four key variables, the presence of a direct initiative process in the state (or municipality, as in Houston).  Initiatives give political entrepreneurs an institutional framework within which to operate that is more accessible and free-wheeling than is a state legislature; conversely, political entrepreneurship is essential for any issue to make it onto the ballot for a vote by the citizenry.  To the degree that a populous state is also wealthy (i.e. has a substantial gross state product, in my terms), it becomes even more likely, ceteris paribus, that one or several people will emerge with the means to finance the very costly steps needed to get a proposal onto the ballot.

It may also be the case that states with large populations attract political entrepreneurs from outside the state as well as from inside it, for substantive as well as strategic reasons.  Since small and large states have roughly similar legislative processes, using roughly similar amounts of scarce resources in a large state will produce a proportionally greater payoff in the substantive sense of ending affirmative action for the most people.  In addition, states with large populations have a large number of votes in the electoral college, and will be reported in highly visible national media.  Thus a political entrepreneur with national electoral ambitions (such as Governor Wilson in California) will gain more than simply one state’s worth of political benefit by mounting an anti-affirmative action campaign in a large rather than a small state.

The analysis of state size and wealth helps to explains why anti-affirmative action activity occurs in some states but not others.  It does not explain why that activity has so far mostly failed.  The second variable in the final regression equation similarly does more to explain where activity occurs than why it fails.

 Explaining the Results: The Role of Direct Initiatives:  We have already seen one reason that the presence of direct initiatives is associated with anti-affirmative action activity – initiatives offer greater scope for the actions of a political entrepreneur.  In addition, they make it possible to bypass a legislature in which legislative action is being blocked. That route to success must seem especially appealing to opponents in view of the strong and consistent public opposition (mostly among whites, a large majority of the voting public) to affirmative action when framed in terms of preferences, reverse discrimination, or quotas. 

To understand the next step – why activity is being blocked in the legislature and why even efforts to end affirmative action through the initiative process have, with one exception, failed [24] -- we need to turn to the third and fourth variables which survived in the final regression equation.

 Explaining the Results: The Conflicting Political Impacts of Nonwhite State Residents:   The key to explaining both why anti-affirmative action activity occurs and why that activity has largely failed so far lies in the complex political implications of  having a large and/or growing nonwhite population in a state.  On the one hand, in states where the proportion of blacks and the rate of increase in the Latino population is high, some whites presumably feel materially or symbolically threatened and their representatives respond by generating activity to oppose affirmative action.[25]  This is a variant on V.O. Key’s (1984 [1949]) classic thesis about white domination in areas with large black populations,[26] although I see no reason to believe that proponents of anti-affirmative action measures themselves see their activities in that framework.    On the other hand, it is exactly in the states with large and/or growing nonwhite populations that white politicians, corporate officials, and citizens are coming to terms with a changing demographic mix and learning to deal with --or even see advantages in – it.  It is also in those states that the African Americans and/or Latinos are developing the capacity to defend their interests in the political arena, and they usually define those interests to include public provision of affirmative action.

Consider first the perspective of white elites and citizens. The Conference Board[27] is now promoting conferences on “managing diversity for sustained competitiveness,” in which the president and CEO of DuPont Corporation is prominently quoted as saying that “we have proof diversity improves our business performance…. Diversity in our company is itself a business imperative vital to our ongoing renewal and our competitiveness into the 21st century” (Hart 1997: 5).  The 400 executives attending such a conference had at least two motives, beyond liberal good will, for their newfound enthusiasm for diversity.  At a minimum, “throughout the conference, executives quietly said that they do not want what happened at Texaco to happen to them” (Hart 1997: 5).[28]   More positively, they are discovering that firms which seek to appeal to a wide array of potential purchasers do better if they have a sales force and managers representative of disparate languages and cultures.[29]  Thus affirmative action is, in the eyes of some executives, a necessary though insufficient step on the way to the desired diversity.[30]  In this new corporate climate, visible support for measures opposing affirmative action in the public arena is bad business practice.[31]

            The participants in this conference may have been unusual in their newfound enthusiasm for diversity, and therefore affirmative action, but they were not unique.[32]  A 1995 survey of corporate CEO’s found that 70 percent of the 140 surveyed, all of whom were affected by contract compliance programs, reported favorable effects of their affirmative action programs.  The same proportion claimed that they would still use numerical goals to track fairness in the workplace even if governmental regulations were abolished.  They feared the loss of uniform federal standards and the consequent variation in state and local requirements (Robertson 1995) [JH: IN Looking Ahead (JCPES/NPA report].  This result demonstrates a dramatic change over a decade; in 1986, a Conference Board survey of human resource executives in 600 major U.S. companies found that “equal employment opportunity” ranked 22nd out of 24 concerns -- just above sexual harassment (Conference Board Research Bulletin 1986: 5).

            Thus opponents of affirmative action have found, to their surprise and disgust, that their apparent allies in the conservative business community either reject or politely distance themselves from political efforts to abolish affirmative action. California’s Proposition 209 was funded largely by the Republican Party and individual Republican political actors, and corporations such as Shell Oil Company, Boeing Corporation, Nordstrom’s, and Pacific Gas and Electric Company opposed it.[33]  Proposition A in Houston was funded mostly by the sponsor of the initiative and by the American Civil Rights Coalition;[34]  the Houston Chamber of Commerce opposed it.  Boeing and Nordstrom’s both oppose the upcoming proposition in the state of Washington, and Microsoft is expected to remain neutral.  No major corporation in the state supports it (Holmes 1998b).  Although corporations will continue to defend themselves against claims of discrimination, and although it will be a long time –if ever – that corporate leadership resembles the American racial, ethnic, or gender structures,[35] it nevertheless seems safe to predict that most corporations will not actively support measures to abolish affirmative action in the states or in Congress.[36]

            Neither will leaders of elite educational institutions.  Almost all of the most senior administrators of the University of California system opposed the 1995 abolition of affirmative action in admission to publicly-supported higher education (for example, Tien forthcoming 1998; Lassiter 1995).  Even the president of San Jose State University, who “had written stinging critiques of affirmative action” is “now more disposed toward it.”  In light of the decline in the number of African Americans and Latinos admitted to the University of California after affirmative action was abolished, President John Bunzel realized that “ ‘there are no airtight, completely coherent, unassailable and holistic answers on the question of affirmative action that are not only theoretically perfect, but instrumentally practical’ ” (Holmes 1998a).[37]  The senior administrators of the University of Texas system similarly opposed the abolition of affirmative action during the litigation of Hopwood v. Texas.  Administrators in other beleaguered state university systems are seeking to defend as much affirmative action in admissions as they can in the current legal climate (for example, Selingo 1998; “UW President Back…” 1998).  President Neil Rudenstine (1996) of Harvard University devoted a major report to a defense of affirmative action and diversity, and the 62 institutional members of the Association of American Universities recently “express[ed their] strong conviction concerning the continuing need to take into account a wide range of considerations – including ethnicity, race, and gender – as we evaluate the students whom we select for admission” (Association of American Universities 1997).[38]

            Like corporate executives, university administrators have a variety of motivations, including but not only liberal racial convictions, for supporting affirmative action.   Protecting their long-term political and economic interests is one, especially for public universities.  As a law professor at the University of Texas pointed out, “ ‘If the majority if people in this state are going to be Mexican-American and African American, and they are going to assume many of the leadership roles in the state, then it’s going to be big trouble if the law school doesn’t admit many minority students – it’s going to be a bomb ready to explode’ “(XX Crassly, in Traub 1998: 20).  The president of the University of Wisconsin system was even more blunt: “It would be much easier to let the [affirmative action] plan we have expire and do nothing.  But we are committed to maintaining educational opportunities for all citizens.  We’re a public university, and minority parents pay taxes to support this university just as whites do” (Selingo 1998: A40).

            As these comments begin to suggest, elected officials are in the most complicated position, and their stance with regard to measures to abolish affirmative action is fascinatingly complex.   States with substantial black populations and/or rapidly growing Latino populations are the states most likely to experience political efforts to abolish the public use of affirmative action. [39]   But those are also the states in which blacks, and increasingly Latinos, are moving into political offices.[40]   Those new elected officials can sometimes block anti-affirmative action measures by virtue of their own position in the legislature.[41]   At other times, they can persuade fellow legislators to halt an effort whose consequences matter deeply to them and their constituents, but much less to most others (see note 4 above).  After all, few lawmakers want to antagonize colleagues who feel passionately about an issue or whose constitutuents do so, especially if it is an issue that is less salient to themselves or their own constituents.

            A substantial nonwhite and/or rapidly-growing Latino population creates additional cross pressures on white elected officials.  White Democratic politicians do not want to alienate the black voters in their state whom they increasingly need for election, so they are reluctant to oppose affirmative action.  But they also seek to halt the trend of the past few decades in which white male Democrats are moving into the Republican party, so they are equally reluctant to support affirmative action too strongly.  They mostly want the issue to go away.  White Republican politicians are eager to woo even a small fraction of the black middle class away from the Democrats.  And they are even more eager, because it is a more likely prospect, to attract newly-middle-class or newly-naturalized Latino voters into the ranks of their party.[42]  Thus many of them are reluctant to oppose affirmative action.  But their chief constituency in the 1990s is working- and middle-class whites, many of whom oppose strong forms of affirmative action – so they are also reluctant to support it.  Like the Democrats, Republican politicians mostly want the issue to go away.[43]

            Thus we see several rather distinct behaviors among elected officials, depending on their political calculations as well as their convictions.  One set of Republican politicians follows the lead of Governor Pete Wilson of California – aggressively opposing affirmative action. They are the state legislators sponsoring the activity in the 26 states discussed above.

A second and considerably larger set of politicians of both parties seeks simply to avoid the issue.  In an article headlined “Engler quiet on racial quotas: Governor soft-pedals affirmative action, fears it’s a no-win situation,” the Republican governor of Michigan claims that “I’ve not looked at” a proposed initiative to ban affirmative action in state hiring, contracting, and college admissions.  The Governor went on, “But I think perhaps the better approach is to allow the courts to rule on the case and that may clear some of the confusion over what the rules are and at the same time reduce the tension surrounding the issue” – this from a partisan, activist conservative “not generally known as a man to mince words” (Hornbeck 1998: D1).  Collective political bodies are responding the same way as individual politicians; typical headlines point out that “legislatures show little enthusiasm for measures to end racial preferences” (Schmidt 1998) or “few governors join attack on racial policies” (Broder and Barnes 1995).  After all, “it’s not the most party-broadening issue that we could pursue at this time”  (Langfitt 1995: 1B).

            A third, and the most interesting, group cycle among support for, silence about, and opposition to measures to abolish affirmative action.  This is the pattern of several nationally prominent Republicans, who must respond to many contending constituencies at once.  Consider the history of Speaker of the House of Representatives Newt Gingrich on affirmative action:

  • November 1991: “Why should Bill Cosby’s daughter have an eligibility for a 10% set-aside based on race?  If it is numerical, and if it is genetically based, it is wrong and it is a violation of everything America stands for” (Keen and Benedetto 1991: XX).
  • 1994: “I don’t think we should use affirmative action as a wedge issue” – explaining why it was left out of the Contract with America (CITE)
  • February 1995: “It is antithetical to the American dream to measure people by the genetic pattern of their great-grandmothers” (Minzesheimer 1995: 4A).
  • August 1995: Republicans should “spend four times as much effort reaching out to the black community… as compared to the amount of effort we’ve put into saying we’re against quotas and set asides” (Grann 1996).
  • June 1996: It would be a “strategic mistake” for Senator Dole to champion Proposition 209 during his presidential campaign (Chavez 1996: A1).
  • February 1997: “We are going to pursue an all out effort to end affirmative racism in America” (“Flag-Burning Issue…” 1997: A4).
  • July 1997: “We need 80 percent of our effort on proving we have found a better way to solve the problem and 20 percent of our effort on ending affirmative action” (Caldwell 1997: 23).
  • November 1997: Gingrich publicly opposed the appointment of Bill Lann Lee as Assistant Attorney General for Civil Rights, “an unusual action for a House leader who usually does not become involved in Administration appointments.” Speaker Gingrich opposed Lee’s purported effort to mandate “ ‘racial and gender preferences in the Los Angeles Police Department’ “ because it was “an attempt to thwart ‘the will of the people of California’” (Holmes 1997: A16 [quotations from Holmes; internal quotes from Gingrich, as reported in Holmes]).

Representative Gingrich is an unusually colorful speaker, which is why I have quoted him so extensively rather than, say, Senator Robert Dole, who shows the same pattern.  But his eloquence does not hide his waffling. He is not inconsistent in his opinion; at least since the late 1980s he has opposed affirmative action based on race or gender, and supported mild forms of it based on poverty or cultural deprivation. But he is perennially inconsistent in his behavior, since he sometimes leads the charge against affirmative action, sometimes seeks to deflect the issue and keep it off the Congressional agenda, and sometimes claims to be leading the charge but in fact seeks to deflect it (see, for example, “Why Newt Gingrich’s…” 1997).  His Republican critics have taken scathing note of this behavioral inconsistency,[44] but it is probably the right political strategy and is probably appreciated by most of his less vocal Republican colleagues.

            Representative Gingrich’s and Senator Dole’s dilemma, as well as that of Democratic politicians, is exacerbated by several demographic and political dynamics in the African American and Latino communities.  On the one hand, almost three in ten blacks describe themselves as politically conservative, and an additional third are “moderate”(“Thinking by Ethnicity” 1998: 55).  The African American middle class is growing, if slowly; middle-class African Americans remain more socially and economically liberal than middle-class whites, but they are more conservative about a variety of social and economic issues than are poorer African Americans (Welch and Combs 1985; Parent and Stekler 1985; Gregory 1992; Tate 1993: 41- 45).   More African Americans than whites give a conservative response to survey questions about legalizing marijuana, prayer in the public schools, education vouchers, public recognition of homosexuality, and women’s appropriate roles (Gallup Organization 1996; Calhoun-Brown 1998; Bositis 1997).  Only 5 percent of African Americans identify as Republicans, but 24 percent call themselves Independents.  Among young black adults (aged 18-34) over a third are Independents. One in seven blacks voted for President Reagan in 1984, and almost one in five voted for George Bush in 1988 (“Thinking by Ethnicity” 1998: 56).  In some surveys, African American teens see less racial discrimination than do their elders (“Ethnicity in Black and White” 1998).  In short, there seem to be good grounds for the often-repeated Republican goal of attracting up to a fifth of the black population, especially those with good jobs and high incomes who are the most likely to vote, into the G.O.P.[45]

            There is, however, a rub: middle-class African Americans have recently become more racially nationalistic than badly-off African Americans, and they are more concerned about issues of racial inequality and discrimination (Hochschild 1995: chapters 4-6; Dawson 199?  IN POLLING REPORT).  Affirmative action arguably benefits the African American middle class more than it does the poor, so motives of interest reinforce disparate perceptions and motives of ideology.  In short, if the Republican party has any hope of attracting more than a tiny fraction of voting black Americans into its ranks, it must avoid association with those (who are mostly Republicans) seeking to abolish affirmative action.  That is not an easy task. 

            The Republican party faces a slightly different set of issues when it considers Latinos, and here demographic changes are even more central to a good political analysis.  The G.O.P. can reasonably hope to attract a substantial proportion of Latino voters; surveys show most Latinos to be deeply patriotic, deeply committed to a traditional work ethic, religiously and culturally conservative, and mistrustful of governments (CITES[ Maharidge 1998: 59; find data in POLL]; Hunter 1996).  During the 1990s, just under a third of Americans with Mexican ancestry described themselves as conservative and just over a third described themselves as moderates.  Only 12 percent identify as Republicans, but four in ten are Independents, and half of those aged 18-34 are Independents (“Thinking by Ethnicity” 1998: 55-56).[46] Those are fertile grounds for Republican cultivation. 

            But Latinos on balance support strong programs of affirmative action – less than do African Americans, but considerably more than do whites and Asians (Hochschild and Rogers 1998: 14-15; Hughes and Tuch forthcoming; Bobo forthcoming; Los Angeles Times Poll 1995; Washington Post et al. 1995; Kravitz and Klineberg 1998).  And many are wary of perceived Republican party efforts to curtail immigration and punish immigrants through Propositions 187 and 227 in California[47] and elimination of food stamps and Medicaid for most nonnaturalized immigrants in the 1996 national reform of welfare.  An unprecedented number of immigrants from Latin America are seeking to become naturalized U.S. citizens (Branigin 1998), and many of them will register and vote Democratic, partly in order to punish the Republicans – or at least so G.O.P strategists fear (e.g., Aguilar 1998, Maharidge 1998: 59).[48] 

Thus the very states in which increasing proportions of Latino would-be students and workers are associated with efforts to abolish affirmative action are the same states in which increasing numbers of new and potential Latino voters are available to either major political party.  Whites are currently a disproportionate share of registrants, and an even more disproportionate share of voters[49] – but those disproportions are falling.  Should Republican politicians respond to the fears and beliefs of today’s majority, and thus oppose affirmative action?  Or should they gamble that future margins of victory can come from new, young, potentially conservative Latino voters who are not yet Republicans, and maybe not yet even citizens?  If so, they should not oppose affirmative action. The right answer is not obvious -- hence Governor Wilson’s aggressive efforts to abolish affirmative action, Governor Engler’s uncharacteristic silence on the issue, and Representative Gingrich’s comical twisting and turning.

            The Democratic story needs fewer details because it is more familiar, but the political implications of changing racial demography are almost as complicated for Democrats as for Republicans.  African Americans are solidly Democratic, and have provided the margin of victory in several presidential and many congressional and state-level races.  The Democratic party cannot afford to alienate them, especially the best-off and best-educated who are the most likely to vote.  But there are too few African Americans for the party to rely exclusively on them and their proportion of the voting population is declining.  So Democratic candidates must attract and retain white voters – who are much less sympathetic to affirmative action.  Roughly the same balance of forces obtains in districts where Latinos are a substantial fraction of voters, except that the proportion of voters who are Latino will grow, dramatically in some districts and states.

On balance, of course, Democratic politicians and constituencies are more liberal than their Republican counterparts so they are more favorably inclined toward affirmative action, ceteris paribus.  Thus we can predict that most Democratic politicians will support mild forms of affirmative action strongly, but will avoid addressing tougher forms at all or approach them with a gingerly “mend it, don’t end it” reform proposal.  And that is what most frequently occurs.

            In sum, I see no reason to expect a wave of successful efforts to abolish affirmative action through the electoral system, despite the shared predictions of the advocates whom I quoted at the beginning of this paper.[50]   A majority of voters might support Initiative 200 in the state of Washington in November 1998, but at most that will make just two states out of fifty with a law banning affirmative action.  So far, current laws, regulations, and practices of affirmative action seem reasonably safe.

 The Judicial Future of Affirmative Action

            But the story does not end here.  I will compound my reckless pronouncement of a number and a date at the same time by making another prediction: strong forms of affirmative action may well be abolished through the judicial system over the next few years.  Efforts to abolish affirmative action are, in that sense, analogous to efforts to promote school desegregation in the 1950s and 1960s -- what cannot be won through the electoral process may be attainable, at least for a while, through the courts.

            The analogy with school desegregation goes beyond the basic strategy of seeking victory through the courts rather than through elections.  The litigators uncannily resemble the lawyers in the ACLU and NAACP Legal Defense Fund in the 1950s and 1960s.  They are a small group of ideologically driven, energetic young men (mostly), in nonprofit law firms funded by foundations,[51] out to change the United States for the better by requiring its institutions to live up to the Constitution as they understand it. 

The two most prominent of the new public interest law firms are the Center for Individual Rights (CIR) and the Institute for Justice.[52]  The former litigated Hopwood v. Texas, and is currently involved in two suits against the University of Michigan (one against the liberal arts college and one against the law school), as well as suits against Texas A & M University, the National Science Foundation, CUNY, the University of Washington Law School, and Alabama State University.[UPDATE???] The Center seeks both to have particular programs of affirmative action abolished through these suits, and to induce the Supreme Court to declare that “ ‘[Regents of University of California v.] Bakke is not the law of the land’ ” (Lederman 1997: A 34; quotation from Michael Greve).

The second firm, the Institute for Justice, is less involved in ongoing litigation but provides strong support for the efforts of CIR.  Its vice-president, Clint Bolick (quoted in one of the opening epigrams of this paper), led the successful effort to prevent the appointments of Lani Guinier, and later Bill Lann Lee, as Assistant Attorney General for Civil Rights.  The Institute has been deeply involved in writing and promoting the bills to abolish affirmative action that have come before Congress several times in the past few years.  One of its missions, like the LDF before it, is to train a cohort of young and idealistic attorneys to carry its message and tactics across the nation and into a wide array of issues and venues. 

The anti-affirmative action law firms follow many of the same tactics as the firms that pursued school desegregation and other traditional civil rights cases. They carefully choose only cases that they think they have a reasonable chance of winning. They concentrate on cases that are most likely to set new precedents.  They work only with plaintiffs who will be attractive to the public.[53]  Like the ACLU, they choose some unusual cases or clients so that they can make clear that their concern is one of deep principle rather than shallow politics.[54]  They oversee strategy and tactics in the national headquarters, but involve local attorneys to try the cases in court.  They seek to bring cases only in the courts of sympathetic judges, most commonly those appointed by Presidents Reagan and Bush.

            Litigators’ suits against affirmative action are analogous to traditional civil rights cases not only in their structure, personal style, and tactics.  They also use many of the same laws. In particular, CIR’s suits against the University of Michigan name the former and current presidents of the university, and the dean and admissions dean in the law school, in their individual capacities as defendants.  The basis is U.S.C. 1983, which “permits individuals whose constitutional rights have been violated to sue those who, acting under color of state law, violated those rights.”  CIR claims that the university’s administrators “had sufficient information to know that the UM admissions program clearly violated the Constitution.  Hence, we believe they are not immune from damages in their personal capacities” (both quotations from Center for Individual Rights 1997).  That law was passed during the era of Reconstruction in order to permit legal action against state officials who used their official position to maintain Jim Crow.  It was revived in the 1960s to be used against Governor George Wallace, Sheriff Bull Connor, and other upholders of the segregationist laws of the South.  Traditional proponents of civil rights laws are deeply distressed at its use in suits seeking to ban affirmative action.  But the law, of course, does not specify what side the defendants must be on, or whether affirmative action policies violate or sustain an individual’s civil rights.  A claim against a public actor in his or her personal capacity is a powerful legal tactic, well suited to making university, corporate, or governmental officials think more than twice before vigorously promoting an affirmative action program in the current legal climate. 

            Finally, litigators’ suits against affirmative action are also analogous to traditional school desegregation cases because they look as though they will win more than they will lose.  They have already won an impressive string of victories that have narrowed the scope of affirmative action.  The most emblematic such victory is not widely known, but it demonstrates the thesis of this paper as clearly as an author could hope.  “Barely one week after Houston voters decided against banning affirmative action in the city’s contracting and hiring [through Proposition A in November 1997], a Federal judge today threw out a similar program for the county transit authority, accompanying his [sic] ruling with a blistering criticism of affirmative action that seems likely to fuel the nation’s unresolved legal and political debate over the issue” (Verhovek 1997b; see also Nissimov et al. 1998; CITE CASE).  At about the same time, the Fifth Circuit Court of Appeals eliminated affirmative action in university admissions in Texas, Mississippi, and Louisiana through Hopwood v. State of Texas; the XX Circuit Court of Appeals found Proposition 209 to be constitutional; the Fourth Circuit Court of Appeals invalidated race-based scholarships at public universities in five states (Podberesky – CITE??); and the District of Columbia Court of Appeals eliminated a federal requirement that radio and television stations seek out minority job applicants (Lutheran Church-Missouri Synod v. FCC).

            At present, most of the judicial action remains at the district and appeals court level.  The Supreme Court declined to rule on the Hopwood or Proposition 209 cases because, as Justice Ginsberg wrote for the Court, “we must await a final judgment on a program genuinely in controversy before addressing the important question raised in this petition” (Reske 1996).[55]  In other words, the Court wants to allow the political process to play out a bit further before it rules definitively on affirmative action.[56]

But the Court’s present restraint gives little comfort to proponents of affirmative action.  After all, restraint follows a series of decisions suggesting hostility to, or at least suspicion of, policies that differentiate by race  (e.g. Miller v. Johnson XX 1995; Missouri v. Jenkins 1995 XXX).  More importantly, a series of decisions by the Supreme Court on affirmative action over the past two decades have narrowed its scope and increased the stringency of the requirements that an actor needs to meet in order to impose an affirmative action plan on its employees or contractors.

The crucial starting point for aa jurisprudence, of course, was Regents of the University of California v. Bakke (438 U.S. 265, 1978).   Just what the Bakke ruling held remains controversial, but most actors interpreted it to mean that universities could take race into account along with other factors in admissions decisions.  Wygant v. Jackson Board of Education (476 U.S. 267, 1986) narrowed the scope of aa slightly by rejecting the role-model justification for retaining minority rather than nonminority teachers in decisions about layoffs.  The Court did not, however, challenge aa in general or the “goal of promoting racial diversity among the faculty” in particular.(Wygant, at 288n.)   Three years later, City of Richmond v. Croson  (488 U.S. 469, 1989) further narrowed the scope of aa, albeit along a different dimension.  It held that city and state set-aside provisions must satisfy the high standard of strict scrutiny, rather than the lower standard of intermediate scrutiny.   The next case -- Metro Broadcasting Inc. v. FCC (497 U.S. 547, 1990) reinforced the standard of intermediate scrutiny for federal set-asides, thereby showing that the Court was not of one mind about either the overall trajectory or the fine details of aa.  But at least with regard to contracting, the fine distinctions were swept aside in Adarand Constructors Inc.  v. Pena (115 S.Ct. 2097, 1995), which held that racial classifications at any level of government must be strictly scrutinized in order to see if they are “narrowly tailored” to achieve a “compelling governmental interest.”

To some interpreters, that decision “reveals that at least two and perhaps four justices are willing to ban racial preferences in all circumstances” (Rosen 1995: 22).[57]  In contrast, others seek to demonstrate that contracting is judicially distinct from admissions decisions in higher education, and that the increasingly restrictive line of reasoning from Croson to Adarand need not – and in the eyes of the Court, does not – extend to schools (Amar and Katyal 1996).  A different dimension of interpretation also reveals contradictory inferences from Adarand: one interpreter sees the crucial change to be the Court’s new willingness to restrict the power of Congress (Mishkin 1996), while another applauds the Court’s “meandering course, …[and] refusal to issue rules” because it leaves the democratic process of decision-making as open and unconstrained as possible (Sunstein 1996). .

            The Editor of the American Bar Association’s Preview of United States Supreme Court Cases  -- as neutral an authority as exists in this vexed arena – writes that it is “not exactly” the case that “all of this sound[s] the death knell for aa” (Richardson 1998).   In her view, aa “undertaken to cure established past or present discrimination is permissible,” although “aa programs established solely to promote racial diversity” are dead.   The Supreme Court may not abolish aa grounded in clearly proven past discrimination – hence my caution about never giving a number and a date at the same time.  But the CIR and its allies have chosen their cases very shrewdly; if they can get several appeals courts to declare Bakke to be no longer the law of the land in their circuit, as the Hopwood appeals court did, then the Supreme Court will most likely feel compelled to intervene to reconcile the disparities among the circuits.  At that point, a Supreme Court comprised of its current members may set the bar against aa so high that virtually no firm, university, or contract-letting agency can surmount it.

 Maintaining Moral Consistency on Slippery Terrain

The comparison I am drawing between the era of school desegregation and the era of attacks on affirmative action has not escaped the attention of the chief participants.  The Financial Profile of the Institute for Justice (1998: 1) begins:

people once turned to groups like the ACLU when government violated their rights. But as these groups fought in recent years to create a “right” to welfare, to preserve racial preferences, and to block school choice, people increasingly sought a principled alternative that would protect individual rights rather than expand government.  The Institute for Justice opened its doors in 1991 to be that alternative.

Michael Greve, executive director of the CIR, justifies an argument about the appropriate “legal baseline” for civil rights laws with the observation, “the NAACP learned that in the sixties, and we’ll learn that now” (Diaz 1997: 15).

            Does this imply that those who celebrated the courts’ supercession of popular preferences with regard to school desegregation must do the same with regard to affirmative action if they wish to be morally consistent?  To put the same question the other way around, must those who decried judicial activism and anti-democratic elitism in the former case do the same in the latter?  If so, liberals and conservatives should be equally discomfitted by the strange career of affirmative action.

            If one interprets democratic values in procedural terms, the answer to both questions is “yes.”  That is, if one sees democratic legitimacy primarily as a matter of popular control over difficult and important policy issues, so long as that control is channeled through neutral electoral institutions and all citizens have an equal chance to express their opinions and cast a vote, then one must accept the continuance of affirmative action with a good grace.  That will be difficult for ideological conservatives, just as acceding to popular resistance to mandatory school desegregation was difficult for ideological liberals.  Alternatively, if one includes defensible decisions by legally chosen judges in fairly conducted trials as part of the legitimate democratic process, then one must accept the possible abolition of affirmative action with a good grace.  That will be difficult for ideological liberals, just as accepting judicial intervention in school systems was difficult for ideological conservatives.  Viewed as an issue of procedural democracy, the strange career of affirmative action seems to exemplify the old saying, “what’s sauce for the goose is sauce for the gander.” 

            But if one interprets democratic values in substantive rather than procedural terms – or rather, if one focuses on the fact that the United States is a liberal democracy rather than a democracy – the normative implications of the strange career of affirmative action are somewhat different.  In this framing, the tension lies between different definitions of liberalism rather than between different ways of putting the concept of democracy into practice. 

If one uses the original understanding of liberalism – with its focus on individual autonomy, rights conceived primarily as defenses against others’ encroachment, mistrust of governmental power, greater trust in market forces – then one can consistently decry the school desegregation judges and celebrate the anti-affirmative action judges.  Such a person is likely to insist, as Ward Connerly and his supporters do over and over, that “ ‘every poll that I have seen which takes a look at the American people’s attitudes on preferences will support my position that the majority are opposed to preferences’” (in Holmes 1998b: A15).[58]  One can also assert, as does the Institute for Justice (1998: 1), that its activities against affirmative action “offer… legal and constitutional protection of the American dream.”  In this view, using the courts to abolish affirmative action because, as Regent Connerly puts it,[59]  “ ‘I can’t find a legislative body that has the guts, the stomach to do what they should do’ ” is both liberal and democratic.  It is liberal because it enhances individual freedom and rights. It is democratic because it produces the policy result that the majority of the public wants.  Mandatory school desegregation in this view was neither liberal nor democratic, so moral consistency lies in supporting judge-made law now after having opposed it then.

            However, if one uses the post-New Deal understanding of liberalism – with its focus on respect for diversity as a component of public action, rights conceived as publicly-guaranteed opportunities to attain success, greater trust in governmental than in market forces – then one is in the symmetically opposite position of consistently celebrating the school desegregation judges and decrying the anti-affirmative action judges.   This view is bolstered by the claim that, as Mayor Lanier put it when lauding the defeat of Proposition A in Houston, “this is a very decent city, and while there were … those who felt we had reached a level playing field with women and minorities, others knew that is just not the world we live in” (Mason 1997:A1).   It is also bolstered by the belief that strong programs of affirmative action foster rather than inhibit freedom and rights for all Americans, as in the first two comments with which this paper began.  Thus in this view using the courts to abolish affirmative action is neither liberal nor democratic.  It is illiberal because it denies rights and opportunities to those whose rights have been denied and whose opportunities are illusory.  It is undemocratic because most Americans really do not endorse such a denial.  Mandatory school desegregation, in contrast, did support deep understandings of liberalism and democracy (Hochschild 1984), so moral consistency lies in decrying judge-made law now after having endorsed it then.

            We are back where we started – with two sets of views that start from shared deep procedural and substantive values, but that interpret those values in ways that are made to be incommensurate.  Neither extreme is the only possible way to interpret those values, and probably most Americans do not so interpret them. After all, surveys in both California (Lempinen 1996) and Houston showed that “ ‘if you give people a middle position, they’ll take it’ “ (pollster Robert Stein, in Verhovek 1997a).  But the electoral system is better at muddling toward a “middle position” than is the legal system, which is why advocates on both sides of controversial issues have frequently relied more on judges than on voters to attain their ends.

I predict that the opponents of affirmative action will come closer to prevailing over the next decade or so than will the proponents, because they have learned an effective legal strategy from their old adversaries and can use it in the courts of a new generation of judges.  Whether abolition of affirmative action will prevail in the long run, as mandatory school desegregation mostly did not, is a question on which even I will not venture a prediction. Whether one can be pleased with the abolition of affirmative action through judicial decisions in a morally consistent manner is not a matter for prediction, and here too I will refrain from further comment.



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[1] One can contrast this fact with other policy arenas in which highly visible public actors have (occasionally) changed their mind.  Although welfare politics for years resembled affirmative action politics, in that advocates held much more stringent positions than did most Americans (Teles 1996), welfare politics changed dramatically in the mid-1990s. President Clinton campaigned on a pledge to end “welfare as we know it.” He later signed and defended legislation that was not completely to his liking, but that certainly changed the welfare system dramatically.  A considerable number of Democratic officials at all levels of government supported the new welfare legislation. Congressman Floyd Flake and other Democrats have endorsed school vouchers for private and parochial schools after being strong supporters of public education.

[2] Glenn Loury (1998: 42) made the same shift at about the same time: “I have been a critic of affirmative action policies for more than fifteen years…. However in the wake of a successful ballot initiative banning affirmative action in California, I now find it necessary to reiterate the old, and in my view still valid, arguments on behalf of explicit public efforts to reduce racial equality.  The current campaign against ‘preferences’ goes too far by turning what before Proposition 209 had been a reform movement into an abolitionists’ crusade.”

[3] Thomas Sowell (1997), for example, described Glenn Loury’s statement of partial support for affirmative action as full of “soothing, sloppy words” and an “exercise in inconsistency or cosmetics.”  In addition to the letters to the editor that Mother Jones itself published, it received the “Enemy Within” award from Racefile, a publication of the Applied Research Center, Oakland, California.

[4] The issue of affirmative action is much more salient to African Americans than to members of any other race or ethnicity.  In the June 1996 survey, over half of blacks said that affirmative action would be extremely important in deciding their vote for president.  In a California poll a few days before the 1996 election (in which Proposition 209 would be decided on), twice as many blacks as whites (23% to 12%) said that they would change their vote for president depending on the candidates’ stance on the proposition (Cain and MacDonald 1997: 12). This point will become important in my later discussion of the political future of affirmative action.

[5] On this dimension, affirmative action differs from welfare policy – about which there is a long tradition of not-always-consistent empirical research – and resembles debates over school choice.

[6] I know of one case study that traces the long-term effects of affirmative action on recipients.   It finds that even affirmative action admits to medical school who are demonstrably less qualified than other admitted students in terms of entering test scores and grades do just as well as their classmates in the practice of medicine (Davidson and Lewis 1997)

[7]  This observation also holds for intense debates over some other policy issues, such as welfare or health care policy, but not for others such as the death penalty or abortion.

[8]  I received the idea for conducting this analysis and the initial list of states from a helpful paper by Kellough, Selden, and Legge (1997).

[9] We generated the list of states in which there is “anti-affirmative action activity” through a lexis-nexus search of all states from 1995 through July 1998.  We confirmed these results with the website entitled Leadership Conference on Civil Rights Online Center: Affirmative Action in the States (  In some states, there has been more than one such activity in a legislative session, or activity over several years. However, since the unit of analysis in the discussion below is states, I collapsed all activities into the “yes” side of a yes/no dichotomy.

[10] Nevertheless, to be conservative I include them among the “anti-affirmative action” states in the analyses below.

[11]  A few recent articles have shifted from the general study of diffusion of innovation across states, or patterns of similarity and dissimilarity in state cultures and structures, to analyses of variations in particular state-level policies.  My analysis is in that sense (if no other) similar to those in Berry and Berry 1990; Nice 1994; and Hero 1998.  Hays (1998) offers a systematic and recent summary of findings about diffusion of innovations across states.

[12] Luckily, these two difficulties in the data pull in opposite directions That is, while the technique of logistic regression tends to inflate the regression statistics (given that the model has only to make an up or down guess as to the value of the dependent variable), the small sample size makes for a very difficult test of the statistical significance of the other results.

[13]  Data to evaluate these hypotheses came from the following sources:  Direct intitiatives:  The Book of the States, 1996-1997 Edition. Vol. 31 (Lexington KY: Council of State Governments): XX; Partisan composition of state governments, 1990:  U.S. Bureau of the Census, Statistical Abstract of the United States, 1996 (Washington D.C.: U.S. Government Printing Office): XXXX;  Raw population, Partisan composition of state governments 1992 through 1996, Percent metropolitan, State gross domestic product:  U.S. Bureau of the Census, Statistical Abstract of the United States, 1997 (Washington D.C.: U.S. Government Printing Office): tables 26, 453, 454, 42, 696

[14]  We also found a negative, but minimal relationship (-.122), between anti-affirmative action activity and population levels of Native Americans.  Significance levels for whites were .060, for blacks .009, for Hispanics .174, for Asians .515, and for Native Americans .399.

[15] Immigration per capita correlated .231 with activity, with a significance level only of .106.  We examined various other immigration variables, but none that measured immigration per capita  proved significant. (probably because they were too closely related to the highly significant predictor of raw state population levels). 

[16] We addressed the lacunae in the data in three ways.   First, we analyzed the cases for which there were no missing data – 34 cases for black trends and 22 for Hispanic trends.  This made it possible to develop a “perfect” logistic regression model for anti-affirmative action activity (using Hispanic population trends, black population levels, and a dummy variable representing the existence of a direct initiative process).  Unfortunately, the model remained rather trivial inasmuch as it applied only to 22 states.  Second, we imputed the missing trend data by assigning 0’s to those states in which a given racial/ethnic group comprised less than 3% of the population.  Using that technique, we found clear positive relationships between activity and an increase in the black population (r = .286, p= .044), and between activity and an increase in the Hispanic population (r = .344, p = .014). Finally, we imputed to the lowest minority states (<3%) the statistics for the next-lowest minority states (3-5%).  The correlations in this case were trivial and statistically insignificant.

            In our view, the Census Bureau made the correct judgment by assigning no value for trends in states with very small populations of a given racial or ethnic group, since an apparently large increase from a tiny base is misleading (consider the meaning of a 300% increase in a population that moves from 100 members to 400 members in a state over fifteen years). Therefore we use the second analysis, of 0 imputation variables, in the rest of the article.

See Census Publication _____).[Public Perspective June/July 1998, p. 14]

[17]  There is no statistically significant pattern between activity and region if one uses  the nine regions of the country as defined by the Bureau of the Census. Nine regions is probably too many to be meaningful, however.  They are also historically misleading in that they combine Alaska and Hawaii (no activity) with the other three “Pacific” states (which all have activity) and they split the deep South (Mississippi, Alabama, Georgia, Louisiana — all with activity) across three distinct regions.  Instead, we dropped Alaska and Hawaii from the regional analysis (NB:  results would have been inflated by treating each as a “region of one”), and divided the nation into Eastern, Southern, Midwestern, and Western regions.  

[18] In a bivariate logistic regression, the best model (using alternative divisions among regions) returns a joint significance of region of only 0.32.  Of the four regions (excluding Alaska and Hawaii), only the south (defined as the old Confederacy) approaches borderline significance, at .18.

[19] The statistically significant negative figure for 1990 is of little theoretical importance, given that organized anti-affirmative action activity did not begin until 1995.

[20] A dummy variable based on being one of the 19 states to receive the greatest number of  illegal immigrants in 1996, and another dummy variable based on being a Southern state [IS THIS TRUE ONLY FOR PETE”S STRAIGHT_LINE DEFINITION OF BEING A SOUHERN STATE???] were also causally linked to activity and borderline statistically significant at the bivariate level.  Neither survived in the regression analysis [IS THAT RIGHT??]

[21] Kellough et al. (1997: 15-19) similarly find that the proportion of the state’s population that is minority is significantly related to the appearance of legislative action opposing affirmative action.  They found no significant relationship between anti-affirmative action activity and the vote for President Bush in the 1992 election, state median income, percent of high school graduates, presence of a Republican governor, region, history of innovation, and other measures.

[22]  According to this analysis, the state of Washington is a somewhat surprising candidate to be the only other state (beyond California) in which an anti-affirmative action initiative will reach the voters. It has a small black population (3.1%), a relatively large Asian population (4.3 %) [remember that the proportion of Asians in a state was negatively related to anti-affirmative action activity], and not an especially large population (it ranks 15th in the nation).  It does, however, allow for direct initiatives, and it has a rapidly growing Latino population (from a small base).  An additional factor not captured by our analysis is also at work in this case.  That factor is the presence of a few effective political entrepreneurs (Holmes 1998b; Mintrom 1997) and an effective media campaign.  Both variables are not easily susceptible to statistical analysis, unfortunately, since their presence is clearly visible only in retrospect.  In addition “no comparative state study… has attempted to integrate a state-specific media measure, most likely due to the difficulty of measurement” (Hays 1998: 7).

[23] In the fullest definition, a political entrepreneur is a person who operates in the public sector, and who seeks to “identify new missions and programs,…develop and nourish external constituencies to support the new goals and programs,… create internal constituencies [within an agency or political body],… enhance the organization’s [or political operatives’] technical expertise… in order to… implement new goals and programs, motivate and provide training for members of the organization, … [and] identify areas of vulnerability, followed by remedial action” (Doig and Hargrove 1990: 7-8). No single person can do all of these things; an effective political entrepreneur is one who does enough of them to attain a substantial part of his or her new missions and programs.

[24] Another exception might occur in the fall of 1998, in Washington.

[25] D. Garth Taylor (1992) similarly finds that an increase in nonwhites, rather than the absolute number of nonwhites, is associated with an increase in hate crimes in particular neighborhoods in Chicago.  See also Green, Strolovitch, and Wong (1998).

[26] The finding with regard to absolute proportions of nonwhites is Kellough et al.’s (1997: 18-19) chief explanation for the difference between states with and without anti-affirmative action activity. They provide several citations to defend it; see also Radcliff and Saiz 1995; and Marylee Taylor (1998).

[27] It was founded in 1916, and “strives to be the leading global business membership organization that enables senior executives from all industries to explore and exchange ideas of impact on business policy and practices” (from description on the frontispiece of every Conference Board publication).

[28] As the vice president for human resources at Texaco reminded the conference attendees, “what happened to us can happen to you in a heartbeat” (Hart 1997: 19).

 In late 1996, a senior executive of Texaco Oil Company secretly taped several other executives making demeaning comments about African American employees and deciding how to destroy evidence of discriminatory hiring and promotion in the corporation.  The tapes were made public, and the political uproar was intense.  It was resolved by a record settlement of $176.1 million to compensate salaried black employees and to design programs to overcome discrimination.

[29] “Our clients, our shareholders are demanding more and more that our employees look like them,” according to the first vice president and senior director of Merrill Lynch, Inc. (Truell 1998: Business Section, p. 8).

[30] At Philip Morris Co., “diversity and affirmative action are very much connected.  Affirmative action builds the workforce, including women and people of color. It promotes the understanding with regard to persons with disabilities, accommodation, and veterans” (Hart 1997: 11).

[31]. In this way, affirmative action is like environmental policy and guaranteed health insurance.  Large corporations can generally afford to support, or at least not oppose, these measures.  In addition, they maintain better relations with a wider array of potential customers by taking neutral or slightly liberal positions than by taking strongly conservative stances that purportedly would be more consistent with their market orientation.

[32] In recent months, IBM has widely distributed an ad with a rainbow coalition of happy workers consulting around a table beneath the headline “Diversity works” and above the text of “It has long made sense to us at IBM to welcome and value individual differences…. In our diverse marketplace, that’s always good business” (e.g in Atlantic Magazine, June 1998, p. 43).

[33] MacDonald (1996) provides a rather cynical description and explanation of “the lovefest between the advocates and the corporate establishment” with regard to Proposition 209 (quote on. P. 24).  For additional typical comments, see Wood (1998: 7).

[34]  The American Civil Rights Coalition is “a grassroots advocacy organization focused on the elimination of racial and gender preferences. Working with activists in different states and in Washington D.C., ACRC will seek to achieve the same success achieved in California in other states and at the federal level” (from the website of the ACRC []). The founder and chair of the ACRC is Ward Connerly, a Regent of the University of California.  He is African American, a businessman, and a friend and supporter of Governor Wilson. He spearheaded and was largely responsible for the abolition of affirmative action in the state university system of California in 1996 (DATE?).

[35]  Corporations have by no means solved the problem of racial discrimination in their ranks; see McCoy (1998) for a reminder that “systemic and even overt discrimination” remains in the workplace.

[36]  Small or independent business owners are likely to support measures opposing affirmative action.  That was the pattern in California with regard to Proposition 209, and the Houston Contractors Association supported the effort to abolish set-asides in Houston.

[37]  The first 2 quotes are from Holmes; third is quotation from Bunzel in Holmes article

[38] The American Council on Education (1998) also issued a slightly weaker statement of support for “diversity,” endorsed by 49 additional educational associations.

[39]  Hero (1998) explores how state politics and policies differ, depending on the racial and ethnic composition of the state.  He does not consider affirmative action.

[40]   As of 1993 (the last year for which data are available), 561 United States and state legislators or elected executives were black, and 199 were Hispanic (Statistical Abstract 1997: tables 458, 459).

[41] As a member of the South Carolina Black Caucus put it with regard to a bill to ban affirmative action in state agencies, “the Black Caucus had an opportunity to tie the bill up.  We don’t have enough power to pass something, but we do have enough to stop some things” (Wood 1998: 3).

[42] “ ‘If we remain a party of all white Southerners,’ says one former Republican National Committee aide, ‘we’ll be a dead party by 2010’ “ (Grann 1998: 12).

[43] Wood (1998) provides an excellent recent description of state legislators' responses to anti-affirmative action bills; as she summarizes, “bills are stalling because there is not a Republican consensus” (p. 6).

[44] Patrick Buchanan accused the Speaker of  “creeping timidity” ( CITE:-- roughly summer 1995); Representative Canady observed a “big disconnect” between the Speaker’s words and actions (Fletcher 1997: A21).

[45] Thus a recent series of headlines:  “Democrats Fear Loss of Black Loyalty” (Neal and Edsall 1998); “Blacks, yes; Democrats, maybe” 1998; “GOP starts minority outreach” (Hallow 1997).

[46] Almost 40 percent of Mexican Americans voted for President Reagan in 1984, and almost a third voted for George Bush in 1988 (“Thinking by Ethnicity” 1998: 56).  In 1990, before Proposition 187, 45 percent of California’s Latino voters supported Governor Wilson (Maharidge 1998: 57).  CHECK FIGURE

[47] to prohibit state services to illegal immigrants, and to abolish bilingual education in public schools, respectively

[48] Five million Latinos voted in the 1996 presidential election, up almost 20% from the previous election. (Maharidge 1998: 58). GET BETTER CITE. The number of Latinos voting in the June 1998 election in California was double the number voting in the 1994 primary (Pyle et al. 1998: A1).

[49] For example, 55% of the residents of California are non-Hispanic whites, but they represent over 80% of the state’s voters (Lutrin and Settle 1996: 4).  Put another way, Latinos represented 12% of California’s voters in June 1998, but 29% of the state’s population (Pyle et al. 1998).

[50] And similar projections from uninvolved observers.  For example, in May 1998, a proponent of Initiative 200 argued that “Washington is, I think, the state that will greatly accelerate the movement toward color-blind civil rights laws…. If Washington State votes yes on 200, then a lot of states will feel much more comfortable following suit” (quoted in Holmes 1998b: A1).

[51]  The Institute for Justice obtains less than 1 percent of its $2.5 million budget from corporations (primarily Phillip Morris Co.); the rest comes from individuals and foundations (phone interview of vice-president for marketing and development by Deborah Schildkraut, March 17, 1998).   CIR lawyers work in private firms and contribute their work pro bono; most of its  $1.2 million budget comes from foundations or individual donors (Diaz 1997: 20).

[52] The American Civil Rights Institute is another key actor.  It provides much of the organizational backing and funding for state-level electoral efforts to abolish affirmative action.  Its members work closely with the law firms, but it does not litigate cases.

[53] The CIR is extremely sophisticated in its use of the media to build public support for its suits.  Its staff chose the lead University of Michigan plaintiff after reading scores of resumes and conducting many interviews of would-be plaintiffs; they coached her very carefully before appearances on national television; they have selectively leaked key components of their arguments to sympathetic journalists in order “to build momentum for their case and put the university on the defensive.” One of the twelve employees of CIR is a full-time publicist (Segal 1998, quotation  on p. XX; see also CIR nd: 1).  Similarly, one of the nine members of the professional staff of the Institute for Justice is a “director of communications.”

[54] The ACLU supports “extremists” on the right (Ku Klux Klan, Nazi Party) as well as on the left (Communist Party, LDF) in order to show its devotion to the principle of free speech.  CIR supports African Americans seeking to abolish regulations on taxi-driving or hair-dressing, as well as opponents of affirmative action, in order to show that it is anti-government rather than anti-black.

[55] During 1998, the Supreme Court also declined to take on affirmative action cases in Nevada (Farmer v. University and Community College System of Nevada, Case No. 97-1104.) and Miami, Florida (“Affirmative Action Plan Dead in Miami…” 1998).

[56] That resembles the initial restraint of the Warren Court, which issued very few broad rulings on school desegregation until more than a decade after Brown v. Board of Education in 1954.

[57] That is why civil rights groups provided most of the funds for a settlement out of court of an affirmative action case in a public school system (Taxman v. Board of Education of Township of Piscataway, 91 F.3d 1547, 1996)  “It is rare for any case to be settled once the Supreme Court has agreed to hear the dispute, and virtually unheard-of for third parties to direct the settlement. But the civil rights groups believed that the stakes were so high in this case that it was better to intervene than risk an adverse high-court ruling” (Biskupic 1997).

[58] That, of course, is one of the lessons of the regression analysis described earlier; politicians in states with direct initiatives think that they have a good chance of winning their point, or at least making political gains, if they take the issue of abolishing affirmative action directly to the voters.

[59] in a continuation of the comment quoted above (in Holmes 1998b: A15)