Alex M. Johnson

excerpted from: Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 University of Illinois Law Review 1043-1073 (1992)(141 Footnotes)

In this article I take the controversial position that the implementation of mandatory quotas or strict numerical goals in the admission process for colleges and professional schools is a necessary remedial tool given the invidious nature of discrimination and the manipulation of the concept of "merit" in our society to maintain the favored position of the dominant group (white males) in our society. In other words, building upon other philosophical work in this area, including my own, I make certain key assumptions that ultimately justify the use of quotas in the admission process. I assume that certain first-order principles such as antidiscrimination and the presumption of individual equality irrespective of race and gender are beyond cavil. More specifically, I reject the concept that certain groups are biologically inferior or superior based on race or other ethnic classifications in favor of the postulate of equality irrespective of race.

Working from the first-order principle that all people are inherently, randomly equal when it comes to the distribution of intelligence across racial and ethnic lines, the logical question is why blacks and others historically discriminated against are underrepresented in certain prestigious positions but overrepresented in negative categories or positions. In the absence of racism and its effects, both past and present, our society presumably would produce a percentage of minority students matriculating at American colleges and professional schools (the focus here will be on law schools although the analysis applies with equal force to medical schools and other graduate professional schools) proportional to the percentage of minorities in American society.

The problem that results in the under representation of minorities in prestigious positions involves slavish devotion to numerical "meritocratic standards" for the allocation of scarce resources in our society. The problem is exacerbated when the meritocratic dogma is coupled with institutionalized racism, creating a permanent underclass in our society from which few, if any, can escape.

As long as there are enough qualified applicants to diversify the student body so that its composition mirrors that of society--of which more later --the student body, if fairly selected, should approximate the racial and cultural composition of society. Consequently, once one rejects the position that blacks and other people of color lack the ability to compete with whites, a serious question is raised as a result of the under representation of blacks and others historically discriminated against in certain positions.

Mandating quotas to eliminate the under representation of subordinated groups is not wrongful as long as there are qualified individuals who meet the minimum standards required for the subject position. On the other hand, having or mandating quotas when no individuals meet the minimum standards is quite harmful. The problem s really about standards, their appropriateness, and their use for the allocation of scarce resources in American society.

To address these issues, this article first examines the historical legacy which created the need for race-conscious remedies in American society. More particularly, this article focuses on the plight and treatment of blacks and other minorities (hereinafter sometimes collectively referred to as people of color) in our society, and how that treatment led to the necessity for and development of race-conscious remedies such as affirmative action. Thus, this article demonstrates that from an evolutive perspective, not much has changed with respect to the condition of minorities in our society and their position vis-a-vis whites as it pertains to the quality and calibre of educational opportunity they have received. In other words, de facto school segregation continues to exist on a massive scale, and minorities continue to receive an inferior education as a result.

Moreover, although this article is not intended as a legal brief defending the constitutional use of affirmative action, in order to place the discussion in the appropriate historical and legal context, some minimal reference will be made to recent Supreme Court opinions that have heightened the debate over the efficacious use of affirmative action. Only by placing the debate over the use of affirmative action in its appropriate historical context can informed decisions be made concerning whether the position of blacks and other minorities in this society, and the state of race relations, have evolved to the point at which race-conscious remedies are no longer needed to correct inequities caused by past and present racism in our society.

Focusing on the current condition of people of color in our society, and comparing it to the historical conditions that led to the development and large-scale implementation of affirmative action programs, reveals that racial discrimination has not been eliminated in our society. If anything, he condition of people of color, when viewed as a whole, has worsened in the last decade. Upon examining the objective, statistical indices regarding the education and distribution of wealth among individuals in our society, it appears that de facto segregation is still endemic in American society and that remedial steps must be taken for its elimination. In other words, the need for affirmative action programs truly never has been greater.

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In the educational context, it is less likely that schools have a "taste for discrimination," that is, that they derive some pleasure or utility from discriminating. It is possible, however, that professional schools may be practicing a form of statistical discrimination that is best remedied by the use of quotas. It is a form of statistical discrimination because no current law or professional school uses race alone as a proxy for characteristics related to productivity and bases admission decisions on that proxy. Instead, discrimination occurs when information about minority students is unreliable.

In other words, notwithstanding the success of minorities in matriculating and graduating from law school, and subsequently becoming successful lawyers, many professional schools in their admission process give too much weight to so-called objective factors like the LSAT and grade point averages because the other information they have about minority applicants is less reliable than the information they have about white students:

Erroneous statistical discrimination can occur if the information employers have about minority employees and applicants is less reliable than the information they have about non-minorities. This probably happens often. Employment [admission] tests may be geared to non-minorities and not measure potential minority employees' abilities with the same degree of reliability. Potential minority employees may go to inferior schools whose grades and other methods of evaluation are less reliable.... In occupations in which subjective evaluations are important, a non-minority employer may be less confident of his or her ability to "size up" a potential minority employee by evaluating characteristics that cannot be objectively measured. Potential minority employees also may not have as good a network of contacts that can convey reliable information about them to prospective employers.

Briefly, the negative effects of statistical discrimination are threefold: underinvestment of human capital, perpetuation of past discriminatory acts, and further racial stratification. Utilizing the disparate impact approach is the most efficient way to combat the negative effects of statistical discrimination. The human capital problem is resolved because blacks are given an incentive to compete for scarce seats in professional school because they are assured a seat if they can out-perform other minority students who are also minimally qualified. The disparate treatment approach would not rectify this problem because the student claiming discrimination would have to show acts of discrimination in the admission process.

Past discriminatory acts are not perpetuated when the disparate impact standard is used. In fact, compensatory justice arguments are complied with when the disparate impact standard is used because it provides redress to those who are suffering the effects of past discriminatory acts. "The disparate impact approach directly addresses racial stratification by seeking to improve the status of members of minority groups" and it "accomplishes this objective without incurring the pointless cost of proving individual acts of discrimination." The disparate treatment standard, on the other hand, is not only an impossible standard to comply with, but is also irrelevant to the compensatory justice principle.

Moreover, even if it cannot be shown conclusively that professional schools are engaged in a variant of statistical discrimination, quotas are the preferred remedy because discriminatory effects in the admission process represent the equivalent of covert discrimination in the employment context, which the discriminatory impact standard (quotas) is best suited to remedy. In essence, covert discrimination is discrimination that is concealed or hidden. The actor discriminates, but does so in a fashion that is not blatant or easily discoverable by the parties who are injured. In other words, the actor's discriminatory intent is somehow masked.

The disadvantaged plight of blacks in American society amounts to a form of covert discrimination. Although the actors' original animus was overt in that the discriminatory acts undertaken were clearly and blatantly discriminatory, the passage of time has served to obscure both the actors and the animus. What remains visible is the effect. The discriminatory effect remains, although those affected or injured by the harm cannot point with specificity to the discriminatory events that created the current state of discrimination or harm. In that sense, the discriminatory effects that linger in our society are analogous to covert discriminatory acts.

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The quota issue has become the political "hot-button" issue of the eighties and nineties. Many, including some of the more vocal supporters of affirmative action, make the incrementalist argument that benign affirmative action programs are good, but that malignant affirmative action plans (those that employ quotas), are inherently wrong and unjustifiable. As a result, many who concede the need for affirmative action reject affirmative action programs that employ quotas. Conceding the quota issue while maintaining a defense of affirmative action in other contexts is erroneous for three reasons.

First, conceding the quota issue while maintaining support for benign affirmative action programs is contradictory because without quotas, affirmative action programs are rendered practically ineffective through the manipulation of the implementation process. Without firm quotas those who oppose affirmative action can delay the implementation of even benign programs by failing to make sincere efforts to achieve the "goals" of those programs and by blaming the failure of benign programs on the people who are intended beneficiaries of such programs. Yet the responsibility for such failures clearly belongs on the institutions charged with remedying the harm.

One variation of this ploy is what I term the "pool problem" which is frequently abused by both sides in the affirmative action debate. In legal education, both in the admission process and in the hiring process for law school faculty, the frequent excuse for the failure of any benign affirmative action program as measured by its results or lack thereof is: "It's not the program's fault--every effort was made to identify, recruit, hire, etc., the objects of the program. Unfortunately, there simply weren't enough (any) qualified persons to admit or hire." This is the so-called pool or minimal qualifications problem that all have heard about at one time or another. The basic argument flows as follows: we (the entity or institution subject to the affirmative action mandate) have minimum standards that must be rigidly employed to award the entitlement that is the subject of the debate. This threshold or floor is objectified. Frankly, identifying the threshold or floor is often dispositive in awarding the entitlement. One cannot be considered even for the benefit that is provided by the benign affirmative action program unless one meets the threshold qualifications. This, of course, controls the size of the applicable pool.

The end result of this process is that the benign affirmative action program fails to succeed or effectuate change because there are no (or too few) individuals in the pool due to the nature of the standard used to define the applicable pool. The fallacy of this approach is two-fold. First, it ignores the benefits engendered by the use of affirmative action programs--even benign ones--and fails to include in the calculus of cost/benefit analysis the societal value to be gained by the inclusion of the beneficiaries of affirmative action in the subject pool. In other words, a value choice is made--one that perpetuates the existing hegemony and social structure, including the distribution of benefits and disadvantages of past discrimination--when a minimal threshold or standard is used that has the effect of excluding or reducing the pool of qualified minority candidates.

Second, such an approach ignores the first-order question of why such a large, diverse group fails to meet or is underrepresented in the pool created by the standard. As discussed above, assuming there are no inherent, genetic traits that either favor or disadvantage one group when compared to another, why is it that similarly situated individuals--individuals who attended the same type of undergraduate schools and received the same type of grades--do so consistently differently when judged by certain metrics. Either one or two things is at work: either the differentiation is due to past discrimination which has not yet been overcome--which is what the affirmative action program is designed to take into account, but apparently inefficiently or negligently fails to accomplish--or the differentiation is an illegitimate product of standards that are not valid for the purposes intended.

Thus the second reason why conceding the quota issue is erroneous is based on the legacy of institutional racism in this society. That legacy is quite clear: the creation of the chasm between whites and people of olor (when measured by whatever metric) because people of color have been systematically, legally, overtly, and covertly discriminated against in American society. In the instant case, the focus is on educational attainment or lack thereof. The differing levels of achievement between whites and people of color is a product of the inferior educational opportunities afforded to people of color in American society, not only in previous generations, but in this generation as well. In this area, people of color once again comprise the bottom of American society as a result of the effects of past discrimination which have only recently, incrementally, begun to abate.

Even assuming that the standards that are employed to award entitlements are fair, to adhere to such standards with the concomitant result that few, if any blacks meet the standards in an affirmative action plan that does not employ quotas (and is therefore relatively ineffective), is to perpetuate an illegitimate situation pursuant to which whites have gained an advantage over blacks in current society as a result of past wrongful behavior. Such a state cannot be allowed to exist consistent with the principles of distributive justice.

This raises the third issue: what is the value of standards and meritocracy? Here there are actually two quite distinct questions. First, are there valid "objective standards" that are employed in awarding entitlements such as admission into professional schools in a nondiscriminatory fashion? Second, assuming such standards exist and can fairly be applied, should we defer to the use of such standards in awarding the entitlements in light of the historical legacy of racism that permeates this society?

With respect to the first question, the evidence is clear that no objective standards are applied in the admission process to award seats in professional schools. The second question, although much tougher, also generates a negative response. Assuming we exist in a world in which there is a fairly uniform consensus that objective standards exist that can be uniformly applied across the board to award entitlements and that everyone agrees accurately measure and correlate ability to perform a certain task (here the ability to succeed or do well in professional school), such a standard must still be rejected for two reasons. First, such standards contain a built-in bias that results in the privileging of those who have benefited by past acts of discrimination over those who were harmed by the same discriminatory acts. Second, applying such "neutral standards" across the board, without remedial assistance for those who have been harmed by past discriminatory acts, solidifies the effect of the discriminatory acts and consigns those who were harmed to a second-class status in a society that is allegedly premised on the equality of opportunity.

moving away from assumptions to the state of current reality, the entire notion of "standards" is premised on a notion of meritocracy that is highly chimerical in this context. One quite common objection to the use of quotas, and to affirmative action generally, is that preferential programs violate the notion that educational opportunities are awarded on the basis of merit and not on the basis of need. That argument is misleading and erroneous because it presupposes first that there is some objective standard that is being uniformly and fairly applied across the board to award the entitlement.

A belief that there is an objective standard that is or can be fairly applied to award seats in professional schools flies in the face of the realities of the admission process. Such a view is too abstract and ahistorical. Many question the validity of so-called objective standards such as the LSAT score and undergraduate GPA for the task which they have been assigned in light of the subjective admission process employed at law schools. Most importantly, even assuming the existence of valid objective standards, it is clear that such standards are not uniformly and fairly applied across the board to award entitlements. As with most other processes, subjective factors infect the process in ways that undermine the use of objective criteria.

This raises a second, related objection to the use of merit or so-called objective standards, in the admission process. In order to have a standard which measures merit or desert, one must by necessity have a definition of meritocracy upon which the standard is based. Indeed, there is a nested quality to the debate over the existence and use of standards and merit to award entitlements which is beyond the purview of this article. What is apparent, however, is the subjective, contextually-based nature of merit. In other words, there can be no objective standard by which to award entitlements because the entire notion of merit upon which such standards would have to be based is subjective in whole or in part. Professor Kennedy said it best:

[M]any ... recognize the thoroughly political--which is to say contestable--nature of "merit"; they realize that it is a malleable concept, determined not by immanent, preexisting standards but rather by the perceived needs of society. Inasmuch as the elevation of blacks addresses pressing social needs, they rightly insist that considering a black's race as part of the bundle of traits that constitute "merit" is entirely appropriate.

Basically, the belief in the concept of merit that is premised on the use of objective standards that allegedly can be fairly applied to discriminate between the deserving and the undeserving is not only factually inapposite, ut is premised on a foundational claim of "acontextualism" that rejects the thoroughly contextually dependent nature of merit and standards. No objective standards exist independently of the context within which they are applied. Moreover, because context, like society, changes and evolves, any belief that universal standards exist that can be applied fairly is too narrowly conceived and constrained to recognize the historical, evolutive, and contextual nature of merit.

Consider Professor Nancy Ehrenreich's insightful observations: [T]he prevailing ideology [based on meritocracy] systematically ignores differences among the citizenry as a whole, promoting a homogeneous vision of American society that both excludes those groups who do not fit the accepted American model and elevates a small but powerful elite to the status of universal "type." ... Rendering such groups invisible by ignoring their differences (or even their existence) and assimilating everyone into a purportedly general type, American ideology [based on meritocracy] conceals the conflict created by those differences and thus allows us to avoid the hard decisions that such conflict requires. Only by denying diversity have we been able to see ourselves as tolerant of it.

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Finally, assuming that all are in agreement with the primary arguments in support of the use of quotas in this article: (1) that quotas are the only effective way to remedy the effects of past discriminatory behavior; (2) that quotas do not result in the award of an entitlement to unqualified individuals; and (3) that the debate over the use of quotas is frequently illegitimate because those who oppose the use of quotas do so on racist as opposed to morally justifiable grounds; and assuming that all reject the related argument that quotas result in the debasement of standards--there is still one objection to the use of quotas that must be addressed. Why favor blacks to the exclusion of other discriminated or subordinated peoples?

Thus, there is one final, nonracist argument against the use of quotas in affirmative action. I call this argument the myth of proportionality. It goes something like this: first, even though I oppose the use of quotas, I recognize that blacks are underrepresented in certain key segments in American society, including the professions. Blacks, however, are no different from any other minority that has attempted to make its mark on American society, including but not limited to Jews, Asians, Latinos, etc. Over time, these other groups--with varying degrees of success--have been able to infiltrate every level of American society. Nevertheless, it does take time. In time, blacks will likewise be successful in, for example, professional schools, now that the institutional impediments (racism) to achievement in that area have been eradicated. So be patient, your time will come.

There is a second component to this argument: assuming I buy your distributive justice argument that blacks are entitled to these positions today and should not be forced to wait for incremental progress that is multigenerational, quotas are the wrong solution because in the long run your position will be hurt because everyone can and will make the claim that their ethnic, racial, or religious group is entitled to proportional representation.

Once again, these arguments are misconceived and wrong because they are too abstract and ahistorical. Taking the last argument first, other ethnic, racial, and religious groups may not be able to make the same claim to proportional representation that blacks can, because these groups were not subject to slavery and the intense institutional racism that has been directed at blacks by American society. Simply put, these groups by and large have not suffered the effects of racism to the same degree as blacks because they have not been subjected to the same extent and intensity of racism.

Of course, as with any blanket statement, a partial attack can be made that refutes the totality of the general statement. Thus, those of Chinese extraction can argue that they were subject to racism in the United States, as can Japanese-Americans, who can buttress their claim with the internment of their people during World War II. Those of the Jewish faith also can claim that they were and are subject to discriminatory treatment in American society. And the list could properly include Latinos, Indians, Native Americans, and others too numerous to list. The problem with these claims, and equating them with claims of blacks for compensatory justice, is that the injury that occurred to these roups and others was not as severe and long-lasting as the injury to blacks which is being remedied by the use of quotas and other types of affirmative action programs. Arguing that all ethnic, religious, and racial discrimination, of whatever type, length, or severity, is similar and should be remedied universally is the same as arguing for the death penalty for any and all criminal violations. What is lacking, of course, is proportionality.

Similarly, arguing, as Thomas Sowell has, that blacks should be treated like any other ethnic group in American society with the result that blacks eventually will achieve a Pareto optimal place in American society through their efforts untainted by affirmative action, must likewise be rejected. First, comparing blacks to other ethnic groups is ludicrous in light of the fact that in 300 years blacks have been unable to obtain what other nonblack ethnic groups have been able to obtain in a couple of generations. This leads me to conclude that the plight of blacks is significantly different than their discriminated against immigrant peers.

Aside and apart from the severity and length of discrimination, other ethnic groups--with the exception of those of Asian descent--have one advantage that blacks did not and do not have: the possibility of racial identification with the majority group. The Italians and Irish, for example, and to a lesser extent Latinos, are much less conspicuous targets of discrimination because of the color of their skin. They, unlike blacks, can enter the mainstream of white American society more easily. They perhaps are more easily absorbed or assimilated in the American melting pot because identifying them is comparatively difficult.

The point is that the experience of blacks in American society is different than that of all other ethnic, racial, and religious groups in American society. This difference justifies the use of quotas or proportional representation in affirmative action programs that are designed to benefit blacks. Considering the black experience in a historical and contextual framework that focuses not only on the past, but the future of American society, the use of quotas is the most efficacious method for achieving racial equality in contemporary American society.