Can We Improve on Affirmative Action?

You're characterizing each student by reason of the color of his or her skin," chided Justice Anthony Kennedy, during the Supreme Court arguments last week over the legality of school-integration plans in Louisville, Ky., and Seattle. "And it seems to me that that should only be, if ever allowed, allowed as a last resort." Kennedy is the court's probable swing vote on this issue, and he has a clear track record on racial preferences: he doesn't like them. "It appears Kennedy is going to stick with his long-held position that affirmative action is unconstitutional," says Paul Gewirtz of Yale Law School. If so, the Roberts court is embarked upon a gradual, but ineluctable, rollback of all racial preferences. As Gewirtz puts it, "This could be the most significant short-term impact of the Bush appointees on the Supreme Court."

Affirmative action was never a very elegant solution to the problem of racial injustice. In fact, Gewirtz—who clerked for the civil rights legend Justice Thurgood Marshall—remembers that Marshall was opposed to making distinctions by race, and had his doubts about racial preferences. But Marshall overcame his doubts, and affirmative action became part of the fabric of American society. On the plus side, a generation of minority and women college graduates has entered the workforce, creating a significant black middle class and a more integrated society. But the price has been resentment, especially in the white working class, and some real inequities. Racial gerrymandering of legislative districts, for example, has created a distorted, extremist politics of racial identification, especially in the South.

Even the most passionate advocates of affirmative action agree that it's a temporary fix, that writing racial distinctions into law is corrosive and illogical in a society that presumes racial equality. Even the most passionate conservative advocates of "color blindness" know that race prejudice still exists and needs to be rectified. So what do we do now? Here are three possible ways to ensure diversity and repair injustice:

Change the Definition. Make it poverty, not pigment. This is an imperfect solution. Yes, a disproportionate number of African Americans and Latinos are poor, but the majority of poor people are white—and more than a few are Asian. If race-based remedies are supplanted by class-based remedies, the number of African Americans attending elite universities, for one thing, will fall. Tom Kane, a Harvard economist, told me, "You'd need an economic affirmative-action program six times the size of the current racial preferences to [benefit] an equivalent number of African Americans." There's another step that would reduce racial and economic injustice: eliminate "legacy" admissions to colleges. Legacies—that is, the children of alumni—represent a huge chunk of students in most fancy schools, about 1 of every 7 students in the Ivy League, according to some estimates. A 1990 study by the Department of Education found that the average Harvard legacy was "significantly less qualified" than other students in all areas except athletic ability. If we're going to end affirmative action for African Americans, we should end it for Affluent Americans.

Change the System. Affirmative action was always racial justice on the cheap. The only real long-term answer to inequality is to provide a better educational system for the poor, and I mean really better: new facilities, longer school days and school years, the best college-prep classes (to lure scholars from the whiter parts of town), and significant salary bonuses for teachers who choose the toughest neighborhoods, for starters. This would require nothing less than a revolution in public education. We would have to stop funding public schools with local property taxes. The states should finance the system, spending equal amounts on all students. Better schools are the most important thing we can do to ameliorate racial and economic injustice.

Fudge it. Congressman John Lewis of Georgia, a hero of the civil rights movement, is heartsick over the prospect that the Supreme Court might end the forcible imposition of integration in the society. But Lewis is a sunny soul, and he told me, "Society has come so far, and we're certainly not going backward." Even if racial preferences are ruled unconstitutional, "people are going to find a way to do it anyway." The Congressman is quite right. Diversity has been written into the dna of American life; any institution that lacks a rainbow array has come to seem diminished, if not diseased. In fact, there is a general acknowledgment, in all but the most troglodytic precincts, that our racial diversity is a major American competitive advantage in the global economy. And so, if universities can give special preferences to students from exotic locales like Casper, Wyo.—yes, you, Dick Cheney—they will find a way to make some exceptions for students from Harlem. In the end, the conservatives may be right: racial distinctions should not be written into law. But the embrace of our fabulous polychromatic smorgasbord has become an essential part of American society. We cherish it too much to let it slip away.