Cal. Litig. 2020, Volume 33, Number 2

Affirmative Action Quandaries The Affirmative Action Puzzle: A Living History from Reconstruction to Today (Pantheon:322 Pages) By Melvin I. Urofsky

Reviewed by Richard Wirick

Richard Wirick leads the insurance coverage group at Kjar, McKenna & Stockalper in El Segundo. He has published four books of fiction, and this essay is forthcoming from his book of essays, Hat of Candles (Macmillan 2021).

When I started law school at Davis in 1981, the affirmative action battle hung over the campus like Don DeLillo’s "airborne toxic event," a cloud so thick you could cut it with a knife. It was on that campus three years prior that a medical school applicant, Allan Bakke, argued that his failure to be admitted was the result of a university policy setting aside certain places for minorities, even though certain minority applicants had less stellar credentials than him. Despite several attempts to relitigate it, it remains the law of the land. But it showed extreme judicial confusion with the entire issue of quotas, "reverse discrimination," and the extent to which an institution of higher learning may want to diversify its incoming student body, or not. The Justices’ bewilderment only begins with the fact that six opinions were rendered in the decision. See Regents of University of California v. Bakke (1978) 438 U.S. 265. The plurality opinion was by Lewis Powell, a moderate. It struck down Davis’s medical school admissions program, but at the same time upheld the right of schools to use race-conscious admissions criteria to an undefined degree. This is where it all got murky. To go back to my DeLillo metaphor, the cloud of unknowing, as it were, blows back and forth almost 40 years later, but seems as impenetrable as ever.

Let’s posit two basic types of "affirmative action." The first, flowing from liberal public opinion lingering from the 1960s, seeks a proactive approach, an effort to reach a certain "critical mass" of underrepresented groups in a business or school by giving applicants from historically discriminated backgrounds preference over slightly more qualified applicants of non-discriminated admission pools. This approach was spearheaded by quotas, and its critics speak often (as did the 1978 briefs to the Supreme Court) of the dreaded "Q-word." Powell and the majority ruled that strict quotas were unconstitutional. Accordingly, colleges began to steer away, both in written policy and in the hushed secrecy of admissions committees’ closed-door sessions, from any suggestion of the Q-word. But the second type of post-Bakke affirmative action, that of vaguely reaching diversity goals (what Powell left legitimate) seems almost to require some kind of (at least rough) quota — how else would you calculate whether you have reached your "critical mass" without counting up the number of aspirants?

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