A Cose Benefit Analysis Of Affirmative Action

Prefatory Note: Some readers will have noticed that I haven’t posted in the past several days. Part of the reason is a holiday break: we’ve been visiting family, friends, and others since the day before Thanksgiving, and generally traveling about Georgia and South Carolina, and that has put a crimp in my posting efforts. But another part of the reason (a BIG part, as you will see below) is that I’ve been working on this response to Ellis Cose’s report on the death of affirmative action. It took longer, and grew larger, than I thought it would when I started. I hope you’ll bear with it.

In two recent posts, which I’ll call Cose 1 and Cose 2, I’ve criticized some of the arguments of Ellis Cose, a contributing editor of Newsweek who recently published a report, “Killing Affirmative Action,” for the Institute for Justice and Journalism at the University of Southern California’s Annenberg School of Communications. Cose 1 commented on an article about the report and the transcript of an interview with Cose about it, and Cose 2 discussed his OpEd in the Baltimore Sun that drew on his report. I encourage (since I can’t require) you to read (or even better, re-read) those posts before proceeding.

Cose apparently saw Cose 1 (and possibly but I tend to think not Cose 2), and he emailed me the following:

One would hope that if you were going to critique a report you would have the intellectual honesty and integrity to actually read the full report. Obviously you did not, since some of the information you requested is there in plain sight. Clearly, honesty is not what you are after, which is unfortunate, since you seem to be an intelligent person.

As for the apparent intelligence, we all know that appearances can be deceiving. As for the dishonesty, if you have read/re-read Cose 1 and Cose 2 I think you will agree that I made no pretense of critiquing the report, since in fact I had not read it. I did take a quick look at it before writing Cose 1, but for some reason the pages didn’t flow easily in my browser and/or on my 12 inch laptop screen (they required too much enlarging, un-enlarging, scrolling up and down and left and right, etc.), and so I decided to limit my comments, first, to the article about the report and the transcript of an interview, and then to the OpEd.

But though I don’t believe there was anything dishonest or even mildly inappropriate about this, Cose does have a point, and now I have read the report itself, in full, and have a few things to say about it. (Well, as it turned out, more than a few.)

Before getting into substance and specifics (although the point I am about to make shades into substance and specifics), I was struck by a number of inconsistencies in Cose’s report. Despite the difficulty I had reading the report online, which may well have been my problem and nothing to do with the nature of the .pdf file, the report clearly was professionally and even lavishly produced. The photographs (and there are lots of them) are all well-done and impressive, in both their clarity and what they communicate; the layout, graphics, pull quotes, etc., are obviously the result of professional attention to detail. It is this obvious professionalism, however, that makes the instances of sloppiness all the more jarring. Justice O’Connor, for example, appears — not once but twice (pp. 9, 73) — as Justice O’Conner. Justice Lewis Powell Jr. wrote the pivotal opinion in Bakke, but in commenting on that opinion Cose writes of “Justice Franklin Powell Jr.’s majority opinion.” (p. 9) Writing of the two racial student assignment cases the Supreme Court will hear this term, Cose writes:

One case arose from a voluntary desegregation program in Seattle that a parents group thought (and an appellate court agreed) was unconstitutional because it allowed race to be a “tiebreaker” in determining which school a student would attend.

The problem here is that, unfortunately, the Seattle racial assignment plan was upheld by the Ninth Circuit. As I mentioned in Cose 2, “Cose, of course, is entitled to his own opinions, but he is not entitled to his own facts.”

Of course if typos or even careless or non-existent proofreading were fatal errors, there would be precious few blogs left standing, and mine wouldn’t be one of them. Moving up one rung on the significance ladder, however, I was struck by another inconsistency, or perhaps only a tension. This report was produced by a well-funded, highly respected school of journalism. [Aside: speaking of funding, since Cose mentions Congressmen Charles Rangel’s and John Conyers’ attempt to tar the Michigan Civil Rights Initiative by references to “the extremely generous compensation package” they allege Connerly received for his work on the issue, it is perhaps not out of order to ask what outside sources, if any, provided funds to Annenberg for this report.]

Its author clearly intended to be fair, if not “fair and balanced” as we have come to understand that standard, and yet it is perfectly clear that this report is intended to be, and is, a fervent defense of affirmative action and a brief against its critics.

The evidence for this conclusion is not only Cose’s own opinions and arguments, which I’ll come to in a moment, but the entire composition of the report. It’s clear from the footnotes that Cose traveled back and forth across the country interviewing numerous people — law professors, deans, administrators, students, hard hat workers, professional people, lawyers, etc. — and yet almost without exception these people, who were numerous but not “diverse” in their opinions, were outspoken defenders of racial preference.

The exceptions? Ward Connerly, Jennifer Gratz, Barbara Grutter, one of the parents involved in the Seattle litigation, and one student. These exceptions were overwhelmed by a chorus of preferentialists too numerous to mention. But just to give you and idea: I counted photographs or pull quotes from 4 critics of racial preferences compared to 13 in favor. The imbalance becomes even greater when one counts individuals quoted in the text praising preferences but with no accompanying photographs. In short, law professors, deans, faculty members, lawyers, business people, students, workers who support preferences were interviewed and prominently featured, but Cose did not interview or even quote one single scholar or anyone else (aside from the five exceptions mentioned above) who opposes his point of view. And unlike any of the supporters of preferences, both Connerly and Gratz were severely and frequently criticized in the text.

For example, one of Cose’s favorite sources, Robert Birgeneau, chancellor at UC Berkeley [whom we have encountered here, here, here, here, among others], “wondered whether Gratz was equally outraged about parking preferences given to the disabled.”

So I presume this person, when she goes to the supermarket or goes to a shopping mall and there are no parking spots left except for the handicapped spots, parks in the handicapped spot because it’s unfair that that spot is reserved for a handicapped person and she doesn’t have access to it.

Apparently Chancellor Birgeneau, in his perfectly Berkeley preferentialist wisdom, thinks of all minorities as “handicapped” (doesn’t he know that the politically preferred term is now “disabled”?) and in need of help crossing the street, getting jobs, and getting into (and out of) college.

Barbara Grutter is given the faint praise of “moving on” and not being as single-mindedly addicted to the principle of equality as Jennifer Gratz:

Grutter in large measure simply continued with her previous life…. Though Grutter backs the MCRI, she is not working fervently on its behalf….

Even though Cose does point out that Grutter founded a group called Toward a Fair Michigan, she is presented here more as a balanced foil to the unbalanced Gratz than as a continuing advocate for colorblind equality.

And Connerly, of course, is portrayed by more than one person favorably quoted in the text as a self-promoting liar. No supporter of preferences is regarded with such contempt. In fact, there is no criticism whatsoever of any position taken by any supporter of preferences.

There is certainly nothing wrong with having a point of view and pushing it. Newspapers do it all the time, and not just on their editorial and OpEd pages. Indeed, this report reminded me quite a bit of the biased coverage MCRI received on the editorial pages, and in more than a few articles that purported to be news stories, in most of the Michigan press and in too much of the mainstream media nationally. This is not a compliment, although perhaps the Institute for Justice and Journalism will think it is.

I’m not sure what I expected, but I had at least hoped for something better. And, initially, there was some indication I might not be disappointed. Cose began by wondering, somewhat plaintively,

Why are we still wresting [sic] with this stuff? Why, more than a quarter of a century after the high court ruled race had a legitimate place in university admissions decisions, are we still fighting over whether race should play a role in who gets in and who does not? Why, given the well-documented history of discrimination in America against women and various ethnic and racial groups, are we still debating whether programs that attempt to address that history belong in the public sphere?

His first stab at an answer was encouraging:

One answer is that principled people on both sides of the issue have fundamentally different views of the world and different takes on the future. Another is that the very idea of affirmative action—defined, in this sense, as systematically treating members of various groups differently in the pursuit of diversity or social justice—strikes some people as downright immoral. The debate is not about whether society should offer equal opportunity. Even opponents of affirmative action programs claim they support that. The battle is over what, and who, should be sacrificed in its name. To believe in affirmative action, as defined above, is to believe (say antagonists and some supporters as well) in a concept of equality turned upside down. It is to believe that “to treat some persons equally, we must treat them differently,” as famously put by U.S. Supreme Court Justice Harry Blackmun in 1978. It is to believe, in other words, something many Americans refuse to believe: that our country falls so far short of delivering on its promise of equality that members of designated disadvantaged groups must be given special consideration.

Despite the slight fudging here — members of “various groups” are not simply treated “differently” or with “special consideration”; members of certain preferred groups are given preferential treatment, and thus treated better than others — this isn’t bad, and it does reflect a somewhat rare ability to recognize that critics of preferences are not all ogres. Unfortunately, this stab at evenhandedness disappears as soon as it appears, replaced by Cose’s own views. Thus, speaking of the two originators of Proposition 209, he writes:

In his memoir, Ward Connerly pays tribute to Glynn Custred and Tom Wood, the two men who came up with the idea and with the original wording. “They would be criticized later on by members of the race industry for ‘stealing’ the language of the Civil Rights Act,” he wrote….

At several points, the Civil Rights Act of 1964 does in fact employ similar language to Proposition 209, prohibiting discrimination on the basis of “race, color, religion, or national origin.” But it was not so much the text that Custred, Wood and Connerly sought to “steal,” as it was the moral legitimacy and weight of the original measure. For they saw themselves—not liberal activists—as the spiritual descendents of Dr. Martin Luther King.

So, Custred, Wood, and Connerly are not literal, textual thieves, just moral and spiritual thieves. But here, as in numerous other places, some of which I will mention, Cose is simply wrong in his history. The 1964 Civil Rights Act did not simply employ language that was “similar” to the “without regard” principle of colorblindness “at several points.” That Act was based entirely on that principle; it was suffused with it; its sponsors repeated it over and over until they were blue in the face. The evidence for this proposition is too overwhelming to cite here, but most scholars would not dispute the history of that act as recounted in Justice Rehnquist’s dissenting opinion in Steelworkers v. Weber (though some would dispute the lessons Rehnquist drew from that history, as, alas, did a majority of a misguided Court in that case) [citations omitted]:

The operative sections of Title VII prohibit racial discrimination in employment simpliciter. Taken in its normal meaning, and as understood by all Members of Congress who spoke to the issue during the legislative debates … this language prohibits a covered employer from considering race when making an employment decision, whether the race be black or white….

In the opening speech of the formal Senate debate on the bill, Senator Humphrey addressed the main concern of Title VII’s opponents, advising that not only does Title VII not require use of racial quotas, it does not permit their use. “The truth,” stated the floor leader of the bill, “is that this title forbids discriminating against anyone on account of race….” Senator Humphrey continued:

Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require hiring, firing, or promotion of employees in order to meet a racial ‘quota’ or to achieve a certain racial balance.

That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and national origin are not to be used as the basis for hiring and firing.


Senator Kuchel delivered the second major speech in support of H. R. 7152. In addressing the concerns of the opposition, he observed that “[n]othing could be further from the truth” than the charge that “Federal inspectors” would be empowered under Title VII to dictate racial balance and preferential advancement of minorities…. [T]he bill now before us . . . is color-blind.”


With particular reference to Title VII, Senator Muskie noted that the measure “seeks to afford to all Americans equal opportunity in employment without discrimination…. Not ‘racial balance.’’Only equal opportunity.”


Senator Saltonstall, Chairman of the Republican Conference of Senators participating in the drafting of the Dirksen-Mansfield amendment, spoke at length on the substitute bill. He advised the Senate that the Dirksen-Mansfield substitute … “provides no preferential treatment for any group of citizens. In fact, it specifically prohibits such treatment.”

Anyone tempted to believe Cose’s assertion that the Civil Rights Act gives only passing, textual lip service to the principle of colorblind, non-preferential equality and that its truer, “moral” meaning requires racial preference should read the extensive legislative history provided in Justice Rehnquist’s opinion, since I’ve quoted only snippets of it. History, of course, can’t settle the question of the propriety of racial preferences — indeed, the majority in Weber apparently lost no sleep over turning their backs on this history, despite Rehnquist’s telling opening comment that they were emulating Orwell. Still, it doesn’t help the discussion to get the history wrong, and it certainly doesn’t raise the level of civility to accuse those who get it right of being thieves.

And one more historical point before we move on: Cose’s definition of affirmative action quoted above — “systematically treating members of various groups differently in the pursuit of diversity or social justice” — is, as I’ve indicated, not bad, at least regarding our current understanding of the term. But Cose is wrong to assume that our current meaning was always the meaning, and thus he is quite wrong to assert (p. 72) that affirmative action “began as a modest attempt to give a bit of a boost to a handful of folks from a race of people who had been unfairly held back for centuries.”

In fact, it began, quite the opposite, as a requirement of “affirmative action” to ensure that every employee be treated “without regard” to race. As I have quoted here too many times to cite (here’s one, complaining about another editorial misunderstanding of this issue; search “executive order” for many others), “affirmative action” was implemented in the federal government by two presidential executive orders, one (10925) from President Kennedy on March 6, 1961, and another (11246) from President Johnson on September 28, 1965. Both used identical language, which I will quote in just a moment, to ensure the opposite of what Cose asserts.

In an attempt to support his point about the origins of affirmative action Cose, predictably, quotes (p. 7) from President Johnson’s Howard University speech:

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.

Equally predictably, he does not quote what followed this passage. Allow me to quote myself (and Johnson) from an earlier, longer discussion of this point:

Today we are accustomed to dealing with two very different standards to evaluate discrimination: an “intent” test, which requires finding a discriminatory intent in order to determine that a particular policy is discriminatory, and a “results” test, which does not require a finding of intent to determine that some “disparity” or “underrepresentation” is discriminatory. But that distinction had not emerged in 1965 when Johnson made his speech, and when he called for “equality as a fact and equality as a result” he did not mean proportional representation or an absolute equality of goods, money, assets, jobs, whatever it is that people mean today by “equality of results.”

What Johnson meant by “equality,” it is quite clear, is non-discriminatory equality of opportunity. The evidence? For starters, the very next sentence in Johnson’s speech, after the oft-quoted passage quoted above, states:

For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities—physical, mental and spiritual, and to pursue their individual happiness. [Emphasis added]

True, Johnson then says in the next sentence that “equal opportunity is essential, but not enough, not enough,” but in the remainder of the speech he does not really specify what more is needed, other than various forms of assistance there is no reason to assume would be conditioned on skin color as opposed to need.

Next, three months after his Howard speech, Johnson signed Executive Order 11246 which required “affirmative action” of government contractors. But note how “affirmative action” was defined:

The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. [Emphasis added]

Cose is no more reliable in his comments about the more recent history of the debate over affirmative action. For example, he writes (pp. 4-5) that in 1997 Connerly

took the fight to Houston but failed to convince voters there to pass a ballot measure that would have ended affirmative action in city government.

That is accurate as far as it goes, but it doesn’t go far enough; what it leaves out is more revealing than what it says. “The people who matter” in Houston (the phrase is Cose’s, as quoted in Cose 2) succeeded in doing what the Michigan elites attempted but failed to do: change the ballot wording on the referendum. The language those who opposed preferences put forward in Houston was identical to what had passed the year before in California, as reported, among other places, here:

The city of Houston shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, ethnicity, or national origin in the operation of public employment and public contracting.

Knowing from virtually all polls on the subject that people oppose affirmative action when it is described accurately as it actually works in practice, i.e., as preferential treatment based on race, but support “affirmative action” in the abstract, if it is not defined, the language that appeared on the ballot was changed to:

Shall the Charter of the City of Houston be amended to end the use of Affirmative Action for women and minorities in the operation of City of Houston employment and contracting, including ending the current program and any similar programs in the future?

So much Cose’s history. Alas, his mastery of current events is no better. In his snippy email to me Cose accused me of ignoring this report, where “some of the information you requested is there in plain sight.” My eyes must be failing me, for I confess: I’ve now looked, hard, and I still don’t see his reporting any of the substantial amount of available evidence that Proposition 209 had any beneficial effects in California at all, nor, as I’ve stated, did I find any evidence of his grappling with evidence or arguments that go against his preferred solutions. Thus there is no mention of UCLA law professor Richard Sander’s extensive published work on the negative impact of racial preferences in law school admissions on their ostensible beneficiaries, black law students.

I had pointed to evidence supporting the prediction of Prop. 209 proponents about the beneficial effects of matching students better with appropriate institutions, which should lead (and in fact has led) to improved minority graduation rates. I looked in the full report for evidence that this was wrong, but all I found was an unsupported suspicion (p. 69):

But, as UC Berkeley officials are quick to point out, graduation rates were going up even before the proposition passed—and have continued to rise since. Indeed, they suspect the rates might have gone up even more had the measure failed.

Cose does present useful charts and graphs on the demographics of California and the changing demographics of University of California students, but these numbers themselves are not the subject of controversy. No one denies that ending, or at least reducing, racial preferences in admissions has reduced the number of some minorities (and increased the numbers of others) at the most selective UC campuses, and even Cose acknowledges (p.23) that the overall numbers of minorities in the system as a whole have not changed very much while the proportion of whites has dropped considerably. The disagreement is over whether racial discrimination should have been maintained to prevent these changes.

What is present in this report in great abundance, however, is not evidence but favorably quoted invective from those who support racial preferences. For example, former Berkeley admissions director Bob Laird (whom we’ve encountered here) is quoted (p. 27, and repeated in a pull quote on p. 28) asserting that:

The truth is, there’s kind of an apartheid developing in the UC system, with big numbers of students of color being shunted to the least competitive of the campuses.

There are a number of reasonable ways to discuss the unfortunate fact that removing racial preferences reduces the number of racial minorities who are admitted to selective institutions, but describing this result as “kind of an apartheid” where students are “shunted” to inferior schools isn’t one of them.

Bob Laird’s “apartheid” comment is reminiscent of another offensive comment made by another of Cose’s favorite sources, UC Chancellor Robert Birgeneau (though not quoted in this report). As I noted here, Birgeneau looked at the reduced number of minorities at Berkeley after Prop. 209 and commented, “[t]his is a tremendous waste of talent.” I had just quoted Kimberly Thomas Rapp of the Equal Justice Society —

“Of those who are accepted, less than half actually enroll,” said Rapp. “They would rather go somewhere they can be amongst a diverse student population and have access to a diversity of views, backgrounds and input. They are going to Ivy League universities and other prestigious colleges.”

— and then I asked a question, which I repeat:

Is Birgeneau saying that attending Ivy League colleges is a “waste,” or merely that attending any institution in California (or elsewhere) other than Berkeley or UCLA is a waste?

Both Apartheid Bob Laird and Wasteland Birgeneau seem to regard the vast expanse of higher education in California beyond the borders of Berkeley and UCLA with the same disdain the famous 1976 Saul Steinberg New Yorker cover viewed America beyond the Hudson.

Some of Cose’s criticisms of affirmative action are, at best, almost silly. Thus, for example, he appears to believe he has said something significant when he writes (p. 73) accusingly that

[t]he cause of early childhood education would seem a natural for the proponents of anti-affirmative action initiatives. Yet, for the most part, they seem uninterested in that fight which, if successful, really could render affirmative action irrelevant within O’Conner’s [sic] 25-year deadline.

Even if this were true, which it is not (Stephan and Abigail Thernstrom, for example, prominent scholarly critics of racial preferences, have recently written a book filled with suggestions for K-12 education), it would be irrelevant to the debate over racial preferences. Did Cose oppose the 1964 Civil Rights Act because all it did was outlaw racial discrimination and did nothing to improve the quality of early childhood education? Should crusaders against workplace discrimination be criticized because they don’t devote equal time to pension reform or improving the employee lounge? In any event Cose does not apply this ridiculous standard evenly; he does not criticize busy and outspoken advocates of racial preferences for their lack of contributions to efforts to, say, “diversity” textbooks. For that matter, if K-12 education were better, preferences wouldn’t be needed, but he doesn’t criticize preferentialists for the same failing he claims to see in Ward Connerly, Jennifer Gratz, and their like-minded friends.

Sometimes Cose’s more radical points are left implicit, which is to say unargued. Thus he quotes (pp. 22-23), somewhat portentously, a 2003 study prepared for the president of the UC system that declared that

the gap between the percentage of underrepresented minority students graduating from California high schools and the percentage enrolling at the University of California has widened.

Does Cose really want to argue that the failure to achieve proportional representation of all racial and ethnic groups is a fatal failing in a highly selective flagship institution? Perhaps, but he doesn’t argue it here. Arguing it, of course, might require him to say something about how far he thinks admissions standards non-minorities must meet should be lowered to achieve how much proportionality, what to do when there are “too many” blacks and “too few” Hispanics, whether he is troubled that whites are a smaller proportion of Berkeley students (and smaller after Prop. 209) than their proportion of the California population, etc.

Consider, in this regard, the following quote (p. 33) from another of Cose’s favorite quotees, Darnell Hunt, director of the Ralph Bunche Center for African American Studies at UCLA:

Darnell Hunt disagrees with those who argued that banning affirmative action programs would increase black self-esteem and that blacks on campus would feel more at home knowing they had met the same standards as everyone else. “I think the laws have actually had the opposite effect,” said Hunt. “They reinforce the stereotypes and reinforce the segregation and create an atmosphere or climate where there’s less need for the majority group to reach out and to interact and to welcome and to connect with other people.”

Excuse me, but what “majority group” would that be? Whites are no longer a majority in California (about 16 million out of 35 million according to the chart Cose presents on p. 12), and are outnumbered by Asians at both Berkeley and UCLA, where, according to the chart Cose presents on p. 23, whites made up 31.7% of UCLA students in both 1997 and 2006 but the Asians students had increased from 39.1% in 1997 to 45.6% in 2006. Whites, in short, are “underrepresented” significantly at both Berkeley and UCLA. Does Cose regard this as a problem? Would he impose a quota on Asians because there is a far higher proportion of them at Berkeley and UCLA than their proportion of students graduating from high school in California?

How many Asians and whites “should” there be in a perfect Cosian university? Can’t tell from this report. Hunt seems not to have escaped from the radical rhetoric of his youth (perhaps he spends his days searching in vain for a “majority group” at UCLA, and that’s why he’s so frustrated with 209), and it is impossible to tell from Cose’s discussion whether, or to what degree, he thinks flagship institutions should mirror the demographics of their states. You’d think someone defending affirmative action in both principle and practice would have something to say about this.

Sometimes Cose seems to get so wrapped up in his arguments against the critics of preferences that he loses sight of what point he’s trying to make and actually presents evidence, unintentionally, that undercuts what I think he was trying to say. Consider, for example, this passage (p. 67):

Prior to its passage, proponents of the proposition [209] were fond of arguing that minority students would benefit because they would finally be free of the “stigma” associated with affirmative action. They would be accepted as equal to their white peers, went the argument, since they had met the same standards. California’s experience seems to say that assumption is not necessarily true—at least not yet. The stigma seems to linger, as any number of students told me and as Evan Caminker discovered. “While I was associate dean [at Michigan] in 2002, maybe it was early 2003,” he said, “I was part of the legal team representing the law school in the Grutter case. My former students at UCLA—who wanted to write an amicus brief in the case—and I had many conversations …about what they wanted to say. And one of the most important, and I thought really poignant, messages that [the students communicated] was …to the extent that they felt there was still a stigma associated with being black or being Hispanic…that feeling [had not gone away]

Does Cose believe that admission preferences stigmatize the preferees or not? Hard to tell from the discussion above, which implies, by the quotes around the initial “stigma,” that it doesn’t exist, but then goes on to cite evidence that it is so pervasive it doesn’t disappear even when its source (racial preference) is removed. In any event, what is the point of Caminker’s observation? Presumably one wouldn’t oppose the abolition of slavery because the effects of slavery on the slave did not disappear as quickly as some abolitionists predicted.

Here’s another example. In Cose 1 I quoted the transcript of an interview with Cose in which he was asked how minorities can “combat the idea that they got their jobs, school acceptance letters, etc. through affirmative action and hence aren’t really worth being there?” He replied:

In my experience, people tend to believe what they want to believe. An unfortunate reality of life is that many people of color who have achieved much are suspected by certain other people of having only gotten by on the basis of race. That is, as I said, unfortunate.

And yet in this report he quotes (p. 56), approvingly as always, the following admission from UM Dean Caminker that of course the Michigan law school lowers the admissions bar for black applicants; otherwise it wouldn’t get any:

… everything is incredibly competitive at the top level. So any student that we will be able to admit under a race-blind admissions program is almost assuredly a student who can also get into Harvard and Yale and pretty much every other school that they apply to. So then there’s the actual difficulty of getting them to enroll.

Actually, Dean Caminker’s admission notwithstanding, not even Michigan claimed, in Grutter, that it would get no black law students without preferences, but one of the many tragedies of racial preference is that all members of preferentially treated groups are tarred with its brush whether they benefitted from it or not.When racially identifiable people benefit from preferential treatment, of course they will be “suspected” of benefiting from preferential treatment!

Indeed, although Cose spends much of his report criticizing opponents of racial preferences for refusing to re-examine their assumptions and enter into an honest dialog about the future, he is generally quite vague about his own assumptions and unwilling, as noted above, to argue them, taking refuge instead in portentous rhetorical questions. An example (pp. 70-71):

Is it the job of public universities to select only those who have already proven they can do stellar academic work and to write off the rest? Or is their job to educate a leadership cadre for an ever-more diverse society? Should universities select those individuals who, collectively, will perform best, even if that means rejecting many people who, individually, perform better? Or should they do something altogether different? The answer one gets, of course, depends on the question asked. And too often in the dialogue about affirmative action, important questions remain unasked and assumptions reign.

After recounting a story that to Ward Connerly was evidence of a blatantly rigged admission system, Cose comments:

But one could also read the story quite differently, as evidence of a university system that had a much broader mission than merely rewarding those who had already had every educational advantage and therefore stood at the head of the class.

Note how this entire discussion neatly avoids confronting the criticisms of racial preference. To say that universities (even very selective flagship institutions?) need not base their admissions entirely on academic merit, on grades and test scores, that they are perfectly free to look for evidence of future “leadership,” is not at all to say they should be free to engage in racial discrimination. Yet Cose writes as though once the former point is granted, there can be no principled criticism of the latter. That, of course, is poppycock.

Finally, one more point before bringing this already too long exercise to a close (though I don’t promise this point will be short). Cose wrote his report before the vote on the Michigan Civil Rights Initiative (MCRI), and it’s clear from much of the discussion that he hoped to influence that vote. Now that MCRI has been approved by a substantial majority of Michigan voters, it’s clear that Cose is one of the “people who matter” who didn’t matter there. Since Michigan is the third state — all of them quite liberal — whose voters have made it abundantly clear that they believe in the original vision of the civil rights movement and the Civil Rights Act — that the state and its agents should treat everyone “without regard” to race or ethnicity — “people of good will” (as we used to say back in the day) on Cose’s side of the divide over preferences ought to abandon their effort to force, through courts and regulatory agencies, their preference for preferences on an unwilling people.

But, of course, they won’t. The litigation train has already left the station in Michigan (BAMN’s case discussed here and here), and additional cars are sure to be added. As Hans Bader of the Competitive Enterprise Institute and others have pointed out (again, see here) the arguments against MCRI that have been and will no doubt be raised have already been litigated in California, and in that regard, in the sad certainty that many of the arguments Cose has reprised in this report will find their way into Michigan courtrooms, it is perhaps appropriate to close by pointing to one more misinterpretation Cose’s report passes on as though it were gospel, once again from Apartheid Bob Laird (p. 31):

… as Laird sees it, … Proposition 209 not only made admitting students of color harder, it also made recruiting them more difficult. “There was a court case before the California Supreme Court … and the court ruled that any kind of targeted outreach, whether it’s in employment or education that focuses on race and ethnicity, is illegal under 209,” Laird said. “So the UC system’s outreach programs, which had run for 35 years and had been relatively effective, have been decimated.”

The case that prompted that decision arose from a contractor’s challenge to San Jose’s requirement that city contractors aggressively go after minority and female subcontractors. The court rejected the city’s argument that targeted outreach was not the same as preferential treatment, which Proposition 209 had banned.

That case is Hi-Voltage Wire Works vs. City of San Jose, and I can’t recommend strongly enough that anyone interested in the nature and impact of Proposition 209 read both the majority opinion by then-Justice Janice Rogers Brown and, especially, the concurring opinion by Justice Stanley Mosk. Theirs is an especially compelling pair of opinions if for no other reason than because they dramatically demonstrate that what is now regarded (take your pick) as either radically extreme right-wing craziness or sound and sensible conservatism on race issues, as expressed by Justice Brown (do I need to add that she’s a black woman?) is no more, and no less, than a continuation of the traditional liberalism, now largely gone from the scene, that was embodied in the entire legal career of the revered liberal Democrat, Justice Mosk (also here), and expressed eloquently in his Hi-Voltage concurrence.

There is, however, another, equally important reason to read Justice Brown’s opinion and Justice Mosk’s concurrence besides noting the congruence of contemporary conservative and traditional liberal views on race discrimination. They both demonstrate, in excruciating detail, the misleading inadequacy — indeed, the inanity — of the conventional euphemisms preferentialists use in an attempt to disguise what they actually do.

Note carefully the language I quoted above:

  • Apartheid Bob Laird: the court ruled that any kind of targeted outreach, whether it’s in employment or education that focuses on race and ethnicity, is illegal under 209
  • Cose: that decision arose from a contractor’s challenge to San Jose’s requirement that city contractors aggressively go after minority and female subcontractors. The court rejected the city’s argument that targeted outreach was not the same as preferential treatment

The Court concluded, on the evidence before it, that the “targeted outreach” “focusing on” women and minorities required by the city of San Jose was in fact indistinguishable from preferential treatment, that the city required behavior on the part of would-be contractors with it that did not simply “target” minorities and women by “aggressively go[ing] after them” but that required them to treat minorities and women more favorably than others. And that, they concluded, was precisely what the citizens of California, in enacting Proposition 209, had barred.

I don’t want to reprint the whole High-Voltage record and opinions here (in part because I’d like you to read the opinions), but a brief, sketchy outline of some salient facts is necessary for the points I want to make.

“The salient facts,” as Justice Brown’s opinion states, were “not in dispute.”

In 1983, the City of San Jose (City) established a program to encourage public works projects participation by minority business enterprises (MBE’s) and women business enterprises (WBE’s). For each contract, the City set a “participation goal” based on the “availability and ability of the MBE and WBE to do the work to be contracted.” To qualify as a “responsible bidder,” a contractor had to meet or exceed this goal or demonstrate “reasonable efforts” to obtain MBE/WBE participation. “Reasonable efforts” entailed documenting written notice to at least four MBE’s/WBE’s soliciting them for the project, follow-up contact to determine their interest in bidding, and written reasons justifying rejection of an MBE’s or WBE’s low bid.

In 1990, in response to the Supreme Court’s Croson decision requiring government entities to demonstrate a history of discrimination before turning to the remedy of racial preferences, the city commissioned a report that established disparities among contractors and in effect continued its old program under a new name. “Like its predecessor,” Justice Brown’s opinion states in its summary of what is undisputed, “the new program included participation goals and required documentation of good faith efforts to meet them.”

The city’s response to the passage of Proposition 209 was essentially to change the name of the office overseeing the program and the program’s name.

After the passage of Proposition 209, the City’s Office of Affirmative Action/Contract Compliance became the Office of Equality Assurance. The City also adopted the Nondiscrimination/Nonpreferential Treatment Program Applicable to Construction Contracts in Excess of $50,000 (Program) at issue here….

As with the 1983 version, the Program requires contractors bidding on City projects to fulfill either an outreach or a participation component. The “Documentation of Outreach” option entails maintaining records of written notice, or “solicitation letters,” to four certified MBE’s/WBE’s for each trade area identified for the project. Copies of the notice or letters must accompany the bid. The contractor must document at least three attempts to contact the MBE/WBE firms to determine their interest in participating in the project. If any MBE’s/WBE’s express interest, the contractor must negotiate in good faith. It may not unjustifiably reject any bids prepared by MBE’s/WBE’s and must specify the reasons for doing so. With respect to the “Documentation of Participation” option, the City determines for each project the number of MBE/WBE subcontractors that would be expected in the absence of discrimination. If a contractor lists a sufficient number of MBE’s/WBE’s in the bid to meet this “evidentiary presumption” of nondiscrimination, it will satisfy the participation alternative, and the City will not require any documentation of outreach.

After a long overview of the history of civil rights jurisprudence in the nation and in California and of the nature and intent of Proposition 209 that is one of the best I’ve read anywhere, Justice Brown analyzes the requirements San Jose imposed on would-be contractors and concludes that they clearly are discriminatory and hence violate the 209-amended California constitution.

The outreach component requires contractors to treat MBE/WBE subcontractors more advantageously by providing them notice of bidding opportunities, soliciting their participation, and negotiating for their services, none of which they must do for non-MBE’s/WBE’s. The fact prime contractors are not precluded from contacting non-MBE’s/WBE’s is irrelevant. The relevant constitutional consideration is that they are compelled to contact MBE’s/WBE’s, which are thus accorded preferential treatment….

The participation component authorizes or encourages what amounts to discriminatory quotas or set-asides, or at least race- and sex-conscious numerical goals…. A participation goal differs from a quota or set-aside only in degree; by whatever label, it remains “a line drawn on the basis of race and ethnic status” as well as sex…. Thus understood, such a goal plainly runs counter to the express intent of the historic Civil Rights Act and, concomitantly, the intent of Proposition 209….

The City’s Program essentially places on a contractor the burden of disproving a negative. Without any prima facie proof of past misconduct, a contractor must establish its responsibility as a bidder by showing it does not discriminate on an impermissible basis in its subcontracting. As with any requirement that utilizes preferences, this completely inverts the normal procedures for making discrimination claims…. Furthermore, a contractor may show nondiscrimination only in the manner designated by the City, either according to a fixed participation goal or by prescribed outreach to MBE’s and WBE’s. In other words, it can only prove it does not discriminate against minorities and women by discriminating or granting preferences in their favor.

Justice Brown then analyzed and rejected the city’s claim that “targeted” or “focused” outreach merely expanded the applicant pool and hence was not discriminatory, but I can’t quote her entire opinion here. What I do want to do, however, is turn to a fascinating, compelling, but under-appreciated argument the liberal Justice Mosk makes in his concurrence: that Proposition 209 actually imposed “affirmative action” obligations on all state agencies!

Stated negatively, section 31 [Proposition 209 in the amended California constitution] prohibits governmental actors from improperly burdening or benefiting any individual or group in the operation of public employment, public education, or public contracting. The prohibition is not limited to barring such actors from improperly assigning burdens or benefits themselves. Rather, it extends to barring them from enabling, facilitating, encouraging, or requiring private parties to do so as well. For the operation of each of the indicated activities involves private parties as well as governmental actors — in other words, the operation of each entails the cooperation of both. One of section 31’s purposes is to preclude any invidious barrier or privileged entrance to participation.

Stated positively, section 31 commands governmental actors to treat all individuals and groups equally in the operation of public employment, public education, and public contracting. The command is not limited to compelling governmental actors to afford equal treatment themselves. Rather, it extends to compelling governmental actors to enable, facilitate, encourage, and require private parties to do so as well. Again, the operation of each of the indicated activities involves private parties as well as governmental actors, the operation of each entailing the cooperation of both. One of section 31’s purposes is to remove all invidious barriers and privileged entrances to participation.

Mosk obviously thought this point so important that he emphasized it again later in his opinion:

Not only does section 31 prohibit governmental actors from improperly burdening or benefiting any individual or group in the operation of activities including public contracting, in order to preclude any invidious barrier or privileged entrance to participation. But it also commands such actors to treat all individuals and groups equally, in order to remove all such barriers and entrances.

This is precisely the sort of “affirmative action” that was not only envisioned but required by the two presidential executive orders implementing affirmative action in the federal government that I discussed above.

Like Justice Brown, Justice Mosk also rejected the argument that the goal of expanding the applicant pool, etc., justified the use of discriminatory means.

Neither section 31’s prohibition against the improper assigning of any burden or benefit in the operation of public employment, public education, or public contracting, nor its command of equal treatment therein, is limited solely to ends. Rather, both extend to means as well. Thus, one may not assign any burden or benefit improperly in an attempt to assign some other burden or benefit properly. Similarly, one may not afford treatment that in any respect is unequal in an attempt to afford treatment that in some other respect is equal. For section 31 at least, the end does not justify the means. Rather, means and end must each justify itself in light of section 31’s prohibition and command.


To be sure, the end that the city’s program seeks is altogether legitimate and even necessary under section 31.

The purpose of the city’s program accords with, and is indeed compelled by, the purpose of section 31. As stated, the program’s object is to remedy the effects of past discrimination and preferential treatment, and to prevent present or future discrimination or preferential treatment, in the operation of public subcontracting. As also stated, section 31’s object is to remove and preclude any and all invidious barriers and privileged entrances to participation in the operation of activities including public contracting.

Nevertheless, despite the legitimacy and even necessity of its end, the means that the city’s program employs offend section 31.

The documentation-of-outreach component of the city’s program, with which a prime contractor who so chooses must comply in order to establish eligibility, requires the prime contractor to grant preferential treatment to subcontracting firms that are owned by women or members of minority groups. As explained, it requires him to provide written notice of his interest in bidding on the contract in question to no fewer than four subcontracting firms that are owned by women or members of minority groups in each pertinent trade or area of work or supply at least 10 calendar days prior to the opening of bids, to follow up such written notice with documentation of his efforts, and to negotiate in good faith and not unjustifiably reject as unsatisfactory any bid that may be forthcoming. It does not require him to take any of these steps otherwise. It thereby skews the process in favor of subcontracting firms that are owned by women or members of minority groups. Not only does it invite those firms into the process, it also guarantees that they will be dealt with well during its course, and will not be ushered out without reason at its end. It does not do the same for others.

The documentation-of-participation component of the city’s program, with which a prime contractor who so chooses must comply in order to establish eligibility, at least encourages the prime contractor to grant preferential treatment to subcontracting firms that are owned by women or members of minority groups. As explained, it requires him to meet the “evidentiary presumption” that the city has established as the percentage of such firms that would be expected to be included in the absence of discrimination or preferential treatment. It at least encourages him to select such firms in such percentage when all other things are equal — and even when they are not — in order to avoid the need to comply with the more burdensome documentation-of-outreach component. It thereby skews the outcome in favor of subcontracting firms that are owned by women or members of minority groups. Inclusion of those firms can help the prime contractor obtain award of the contract in question. Inclusion of others cannot.

In sum, the means that the city’s program employs through its documentation-of-outreach and documentation-of-participation components offend section 31 because they either require or at least encourage a prime contractor to grant preferential treatment to subcontracting firms that are owned by women or members of minority groups.

Finally, note that both Cose and Apartheid Bob Laird complained that Hi-Voltage barred all “outreach” programs. By now you will not be surprised to learn that it did no such thing.

Thus Justice Brown wrote:

Although we find the City’s outreach option unconstitutional under section 31, we acknowledge that outreach may assume many forms, not all of which would be unlawful. Our holding is necessarily limited to the form at issue here…. Plainly, the voters intended to preserve outreach efforts to disseminate information about public employment, education, and contracting not predicated on an impermissible classification. We express no opinion regarding the permissible parameters of such efforts.

Justice Mosk even went so far as to demonstrate just how cities could/should structure constitutionally permissible outreach programs:

A prime contractor would have to provide written notice of his interest in bidding on the contract in question to no fewer than, say, 10 subcontracting firms of his own choosing in each pertinent trade or area of work or supply at least 10 calendar days prior to the opening of bids, noting the identity of the owner or owners of each such firm — all to be reflected on a form to be filed as a public record. He would have to follow up such written notice with documentation of his efforts — again, all to be reflected on a form to be filed as a public record. And he would have to negotiate in good faith and not unjustifiably accept as satisfactory, or reject as unsatisfactory, any bid that may be forthcoming, stating his reasons for accepting or rejecting each — yet again, all to be reflected on a form to be filed as a public record.

Such a documentation-of-outreach component would be consistent with section 31’s prohibition that governmental actors must not themselves improperly burden or benefit any individual or group in the operation of activities including public contracting, or enable, facilitate, encourage, or require private parties to do so. It would also be consistent with section 31’s command that such actors must themselves treat all individuals and groups equally, and enable, facilitate, encourage, and require such parties to do so.

In short, as interpreted by Hi-Voltage, Proposition 209 did not bar all “outreach” programs, only those that involve extending benefits or imposing burdens based on race or ethnicity.

On several occasions in his report Ellis Cose lamented the absence of constructive, malice-free dialog about the best ways to usher in the discrimination-free future that everyone wants (well, not quite everyone; I would exclude BAMN and friends along with their analogs, the David Dukes of the right). If he is serious about this desire, he should turn his talents toward trying to persuade his fellow preferentialists in university administrations, editorial offices, board rooms, union halls, and “civil rights” organizations to cease and desist their legal and other efforts to block, thwart, undermine, or evade the clearly expressed public desire to honor and uphold the traditional principle that people should be treated “without regard” to their race, religion, or ethnicity. Now, not after a series of futile but expensive court cases, is the time for all “people of good will” to work together to create non-discriminatory “outreach” programs and other discrimination-free means of achieving the goal of a colorblind society.

I’m not holding my breath.

Say What? (2)

  1. dchamil December 1, 2006 at 2:41 pm | | Reply

    Let’s note that maintaining an absolutely level playing field for each young person — aside from their inevitably differing genetic endowments — is only possible if the government does all the child-rearing. Such a goal is also in conflict with each parent’s desire to give junior and sis some advantage over their schoolmates, whether from piano lessons or educational Christmas presents.

  2. Chetly Zarko December 2, 2006 at 7:09 pm | | Reply

    I’m fascinated by Cose’s implication that “Grutter moved on” with her life and was less active than Gratz. While that may seem true at first glance (and contains a seed of truth), I think your right that it is more of a rhetorical trick to attack Jen. Barb was there on July 8, 2003, when MCRI was formed, and there in so many ways until Toward a Fair Michigan was formed, that the claim is laughable. These outside-looks-in will never capture the real movement. Of course, this one is designed to target and destroy the two most prominent leaders, but it misses badly.

Say What?