cruel loss of time and self-esteem suffered by the students involved; all of them would have succeeded elsewhere, but were misplaced in our program, drawn there only to satisfy political demands and our own moral vanity. Somewhat simi. lar patterns have been reported for many law schools where, at least in the past, the proportion of minority students graduating is substantially lower than those enrolling, and the percentage of those who pass the state bar exams is lower still, at times shockingly low. Yet I would not want to lean heavily on these or other examples. To do so is only to add to the general mindlessness, wherein statistics when avail. able are torn out of context, or otherwise used to dissemble and deceive. In particular one must take skeptically the news that things are going swimmingly at Harvard Law and Stanford Medical and MIT Economics and the like. Elite schools and programs, once they put their minds to it, can command the best of everything, and their successes in minority training tell us nothing at all about what is happening elsewhere. This country's educational institutions are so diverse, and so variously organized, that it is nearly impossible to discern what any given set of figures actually means. I know of two nearby law schools: one is elite, admits selectively, and fails hardly anyone. Another is non-elite, admits more generously, yet fails a large percentage. There is no easy way one can compare their statistics of "success" or aggregate them; nor do national statistics tell us much unless we have some sense of what levels of competence those figures represent. The only thing we I can say with confidence is that the statistics of "success" bandied about are inflated to an unknown degree. LIVING WITH QUOTAS/27 of the good Father tending a mute and faithful flock, or of the foundation chief dispensing largesse to those he deems worthy. It simply does not correspond to the realities of an energetic and clamorous democratic culture, in which we do not provide for them, but in which all of us strive, compete, negotiate, accommodate, succeed, fail, rise and fall and rise again. 2. Do quotas help the disadvantaged? One afternoon several years ago, while serving on our admissions committee, I came across the applications of two young women. One was an ambassador's daughter who had been educated in private secondary schools, and was attending a most prestigious Ivy League university. The other might have stepped out of a Harriet Arnow novel. She had been born in Appalachia, the daughter of a poor farmer. The farm failed, the family moved north, her father died, the family survived on welfare and odd jobs, she married young, bore a child, was divorced, began attending a municipal university and ultimately was graduated with an excellent record. With respect to objective measurements-test scores and the like-these two young women were more or less evenly matched. It was the ambassador's daughter who, being black, was offered an invitation (which she did not ultimately accept, having a surfeit to choose from); the welfare child, being white, was not admitted, did not come close. This anecdote has been chosen to illustrate as succinctly as possible the moral problems inherent in any system which provides privileges by race alone, and which will not recognize other bases of disadvantage. Either one must argue that race is the only stigmatizing American condition, an argument sometimes made but not commonly accepted; or else one must assume that race and class are essentially identical, which is simply not the case. And it is least likely to be the case at the higher reaches of higher education, given the strong association between social class and scholastic competence, an association which seems to be universal. This past year our admissions committee decided to give some attention to the socioeconomic status of all plausible candidates. What we found was startling: of the five minority "finalists," three were attending elite private colleges, and two were at selective state universities. Only one had received scholarship help. Three of the five came from affluent-not merely comfortable What is even more troubling than the inflation is the tacit assumption that all improvements in minority enrollment are due only to the quota programs. We have here the characteristic mindset of the New Class of foundation executives, university presidents, bureaucrats, and publicists who simply cannot bring themselves to understand that good things can happen without the benefit of their intervention. One would never suspect, in reading the reams of anti-Bakke writing, that minorities-and especially blacks-have during the last generation accomplished, partly through the vagaries of history and partly through their own exertions, an amazing series of transformations: from agrarian to urban, from poverty to the beginnings of economic stability, from dispossession-families, and one of these gave every evidence of to modernity. One would never imagine that these profound demographic changes may account for the largest part of the increased representation of minority students in higher education. None of this is evident in Father Hesburgh's letter, which asserts that "for only ten years now have we provided a modicum of equal educational opportunity..." etc., etc. That is de haut en bas, the voice being rich. The committee member who interviewed most of them reported back to our faculty, somewhat ruefully, that their average family income was considerably higher than that enjoyed by the faculty itself. The luck of the draw that year may have given us an unusually well-to-do group-I suspect it didbut the fact remains that during the last few years 28/COMMENTARY MAY 1978 almost all of the minority students in our program have appeared to be of middle-class background, to judge by dress, speech, and quality of sensibility. They are talented and likable and interesting; they are well-schooled; they will succeed in getting their degrees. But it is pointless to pretend that they are disadvantaged, or that their presence introduces any diversity to our program except in the most superficial fashion. Nor does one find them all that interested, as a group, in specifically minority problems (nor do I think they ought to be), especially after they have been admitted to graduate training, and can relax and discover what really interests them. The interaction between class and race is an issue which has yet to be addressed seriously by most commentators on affirmative action, not to mention its bureaucrats. Any intelligent analysis of the issue will have to begin by recognizing the aforementioned relationship between being middle class and being competent scholastically. Hence a policy of preferential admissions which favors the disadvantaged-of any race or ethnic group-will involve a high rate of failure; conversely, any attempt to choose minority students likely to succeed means a preference for the middle class among them. What has happened, I think, is that the strong departments and schoolssuch as my own-having viewed the wreckage of their earlier efforts to favor the economically deprived, have now decided to recruit those more likely to succeed, which in practice means middleclass minority students. Hence a program which began as an effort to remedy disadvantage has become increasingly a program which most helps those minority youngers who least need help. 3. Are the students qualified? I have kept for last the most difficult question of all, the meaning and use of the term "qualified." The question is so difficult emotionally that only a genuinely self-confident minority scholar, like Thomas Sowell, can deal with it in a straightforward way. It is also difficult conceptually, since the term is intrinsically a matter of context-when we use the word we ordinarily specify when and how and for what pur. poses and compared to whom. Given these sources of ambiguity, it makes one uneasy to observe the shrillness with which the idea is advanced that minority students chosen for professional training are "entirely qualified." A few nights ago I watched a television debate on the Bakke case in which an old warhorse of the old liberalism insisted that the minority students chosen ahead of Bakke were qualified-he stressed the word, almost shouted it. What made him think so, he was asked. Well, the doctors who chose them thought so, otherwise they would not have been chosen. And having uttered that tautology, he broke into a smile of seraphic self-satisfaction. HAT lies behind all this blustering, W all this shrillness, is an intention to rewrite the common understanding of what it means to possess adequate academic qualifications. A subsidiary intention is to depict academics as rigid, hard-hearted pedants who for the sake of a few measly points on this or that meaningless test refuse to offer a helping hand to deserving minority students. Yet the differences are not trivial. Were they trivial there would be no issue, since it is hard to imagine many teachers or students becoming indignant or concerned about the difference between an A— or a B+ level of achievement, or between a Graduate Record Examination score of 650 as against 600. The differences we worry about are large and at times enormous, so much so as to raise issues which go beyond the issue of fairness to the larger question of whether the public is being responsibly served. It is rather ironic to note that the more sophisticated moral arguments in favor of reverse discrimination have emphasized "the common good," yet it is precisely that common good which a feckless reliance upon quotas is liable to injure. One of the unexpected byproducts of the Bakke case is that it liberated data on medical-school admissions held closely or concealed. These findings are especially important in that they refer to the medical school Bakke sued-the University of California at Davis, a run-of-the-mill institutionrather than to Harvard or Johns Hopkins and the like, which can choose from among the very best minority applicants. The findings from the Davis medical school may in that sense be more representative, and what they tell us is simply distressing. Students admitted under a quota to the school had an undergraduate grade-point average in the B to C range. You will not grasp what these figures say without being aware of the current level of grade inflation at American universities. For example, the typical student at my university graduates with a B+ average, and a good (though not brilliant) one will graduate with an A-. The minority students admitted to the Davis medical school were at the very bottom of the grade distribution; in an era of honest grading, most of them would have been at the D level or below. A friend of mine, deeply sympathetic to affirmative action, looked over the table of grades and test scores I provided for him, groaned, and said, "My Lord. If that's who they let in, whom do they keep out?" These are painful matters to read and to write about, yet anyone confronting the Davis medical statistics for the first time, as I myself did a few weeks ago, and can construe from his own experience what they mean, will likely find himself overcome with dismay. It is deplorable that these data have received almost no attention in the press; that the university presidents and deans who have *e access to this information keep silent; that students so marginal are encouraged to enter medical training; and that as a consequence the able minority student inevitably comes under suspicion. When quota programs in higher education first went into effect, thoughtful critics warned that the logic of the situation would ultimately compel an extension of quota-mindedness into all other areas of public life, and not merely by infection and example. They reasoned that marginal students, once recruited and enrolled, would tend to be passed through educational programs-at least in many cases-and then be unable to compete equally in an open market for talent. Hence new systems of preferment would be established and sustained. That is just what has happened. The emerging solution, which we see in faculty hiring and elsewhere, is to set aside, tacitly, certain positions as "minority" slots. Thus we reach the final and most wretched duality of all-a two-tier system of categories, involving on the one hand "real jobs" for which serious candidates compete seriously, and on the other, "minority jobs" which are set aside as a sop either to conscience or, more often these days, to the demands of the government bureaucracies. The corrupt means chosen to achieve the virtuous aim of integration ends in imposing, for the first time, segregated statuses within the university. LIVING WITH QUOTAS/29 the struggle to continue, even to intensify, and to be fought via legislation and popular initiative. On the other hand, the Court may hold for Bakke on broad constitutional grounds, and the quota issue will fade away, to be remembered only as one of the many unpleasant episodes of the 70's. Yet even so we would be left with the most disturbing questions about how social policy is made in this country. The rapid conversion of “affirmative action" to bureaucratically mandated quota; has taken place despite specific congressional intentions to the contrary, despite its overwhelming rejection in publicopinion polls, despite the solemn disavowals of President Carter both before and after his election, and despite a body of legal doctrine presumably removing race as an acceptable criterion for preferment. None of this has made the slightest difference. Congress is paralyzed. The President, characteristically, waffles and then yields. Some of our most prominent legal theorists promptly discover that, on second thought, a little racial discrimination is just what the country needs, as long as it is understood to be for our own good, and carried out by high-minded folk. Those folk turn out to be revenants from the Great SocietyMcGeorge Bundy, Joseph Califano, and the like --who seem bent on repeating all of the errors of that era, who are still unable to grasp that sheer energy and mere good will do not in themselves accomplish wise policy, and that authoritarian means, however well meant, will not achieve democratic ends. A thwarted and resentful public seems to understand this perfectly; it is only our leadership which cannot. Loading the Economy ORRIN HATCH It shall be an unlawful employment practice for any Paragraph 703(d) of Title VII of the 1964 Civil Rights Act. The spread of affirmative action since the passage of the Civil Rights Act in 1964 has been an event without precedent in American history. With astonishing speed, federal and state agencies have asserted the right to impose racial quotas on virtually every area of American life. Even a tiny academic institution like Hillsdale College in Michigan, with a faultless tradition of social progressivism and an established policy of refusing federal monies, is menaced on the ingenious grounds that, since some of its students get veterans' benefits, it is in receipt of federal funds.' All of this is in flagrant breach of the letter and the spirit of the Civil Rights Act, as specifically established in congressional debate at the time of its passage. The legalistic casuistry indulged in by the liberal plurality on the Supreme Court in order to give at least limited endorsement of affirmative action in the Weber case has not unreasonably been described as "the most horrendous decision in U.S. Supreme Court history since the Dred Scott case"? (by Professor Sidney Hook), as a violation of the separation of powers (by Chief 1. "H.E.W.-ing at Hillsdale," Regulation, Jan./Feb. 1979. The case is currently under appeal. 2. Measure, Sept./Oct. 1979, p. 1. 24 Policy Review Justice Burger) and as "Orwellian" (by Justice Rehnquist)3. More significant still, affirmative action is a reversion to a society of status from the ideal of a society of free contract, equal protection and individual freedom which inspired the framers of the Civil Rights Act and ultimately of the American Republic itself. The legality, or otherwise, of affirmative action will keep lawyers employed for many years. Cultural historians (and possibly psychologists) will make reputations explaining the reluctance of press and politicians to oppose its development, or really to notice that it was going on at all. However, since affirmative action is indeed going on, without benefit of law or legislators, a more immediate concern ought to be what its practical effect is likely to be. Typically, this turns out to be the least studied aspect of all. Some economists have done work on the effects of affirmative action upon the relevant "protected class." This has generally been pessimistic. Such evidence as is available suggests that the programs fail, either because of absolute lack of candidates, or extensive changes and other factors in the economy, or high attrition rates. Intuitively, we might suppose the effect would be similar to tariffs, inducing a local and relative prosperity at the expense of overall welfare. This prosperity would probably be less in absolute terms than might have been the case if the economic system had been permitted to work freely. But a recent survey by the Library of Congress was unable to discover anything substantial from academe on its overall or macroeconomic impact. In fact, the major empirical study was done as part of a survey of all government regulation by public accountants Arthur Andersen & Co. for the Business Roundtable; and the most helpful theoretical discussion of regu 3. Justices Burger and Rehnquist's dissents to Weber, both of unusual ferocity. 4. Andrea H. Beller, "The Economics of Enforcement of an Antidiscrimination Law: Title VII of the Civil Rights Act of 1964," Journal of Law and Economics, Vol. 21, Oct. 1978; and the work of Thomas Sowell of UCLA. 5. Cost of Government Regulation, "Study for the Business Roundtable: A Study of the Direct Incremental Costs Incurred by 48 Companies in Complying with the Regulation of 6 Federal Agencies in 1977," Arthur Andersen & Co., March 1979. |