The purpose of affirmative action is to break down the
wall of occupational segregation that excluded racial minorities and
women from entire occupational sectors throughout American history.
Whatever else one might want to say about affirmative action, it has
achieved its policy objective: substantial desegregation of the American
workplace, for women and minorities alike. This is true not only in
the professions and in corporate management, but also in major blue-collar
industries and in the public sector, where nearly one out of every three
black workers is employed. If logic and principle had prevailed, we
would now be exploring ways to expand affirmative action to industries
and job sectors that have been immune to change.
The problem is that "for more than two decades, affirmative
action has been under sustained assault," as Sturm and Guinier
write in their opening sentence. Though they do not say so explicitly,
they seem resigned to the fact that the Supreme Court, which has already
eviscerated affirmative action through a series of decisions, is now
poised to deliver the coup de grace. Against this background,
Sturm and Guinier declare that "it is time to shift the terrain
of debate." The entire thrust of their argument is to explore alternatives
to affirmative action that will broaden access of minorities and women
to jobs and universities.
At first blush, this strategy may appear to be a sensible
concession to political reality. However, two troubling questions arise.
First, are Sturm and Guinier capitulating to the anti-affirmative action
backlash and prematurely throwing in the towel for the sake of an illusory
consensus? Second, would their proposed reforms of the selection process,
even if enacted, provide the access to jobs and opportunities that are
today secured by affirmative action?
The logic of Sturm and Guinier’s brief can be stated
as follows:
1. Affirmative action is assailed by critics as violating
cherished principles of "merit."
2. On closer examination, the "testocracy" that
is used to assess merit is neither fair nor functional.
3. Therefore–alas, here the syllogism runs into trouble.
Sturm and Guinier could have concluded that the case against affirmative
action is specious and therefore affirmative action should be upheld.
As the saying goes, "if it ain’t broke, don’t fix it."
Instead Sturm and Guinier make a case for overhauling
the selection process that evaluates candidates for jobs and college
admissions. To be sure, there are compelling arguments for abandoning
standardized tests that favor privileged groups who, aside from the
advantages that derive from better schooling, have the resources to
pay for expensive prep courses. Sturm and Guinier also make a compelling
case that it would be fairer and more productive to judge applicants
on the basis of performance criteria, rather than scores on "paper-and-pencil"
tests. The problem, though, is that they implicitly advocate these reforms
as a surrogate for affirmative action policy. They may tell themselves
that they are driven by realpolitik, but they end up acquiescing
to the reversal of hard-won gains and falling back on reforms that are
unlikely to be enacted in the foreseeable future. Their ideological
enemies will revel in this retreat to a second line of defense by two
law professors who are identified with the cause of affirmative action.
Nor will Sturm and Guinier get the concessions they are bargaining for.
Is this not the lesson of Bill Clinton’s ill-fated proposal to
"end welfare as we know it"?
What evidence is there that overhauling the selection
criteria would open up avenues for women and minorities? In most large-scale
organizations–corporations and universities alike–employees
are routinely evaluated by superiors on an array of performance criteria.
Is so-and-so a "team player"? Does she do her job well? Does
he have good communication skills? Does she make the tough decisions?
Does he demonstrate leadership? Such judgments are easily tainted by
personal prejudices, especially when the people doing the evaluations
are white and male and the people being evaluated belong to stigmatized
groups. Indeed, studies have consistently found that performance appraisal
ratings of women and people of color are prone to bias.
A second problem with the "performance-based model"
advocated by Sturm and Guinier is that the benefits would be diffused
to many groups, and could easily miss African Americans, who were the
original targets of affirmative action policy. Besides, how do people
demonstrate "performance" when they cannot get their foot
in the door?
Finally, Sturm and Guinier place emphasis on jobs "where
customers, clients, and perspectives may themselves be identified by
race and gender." Granted, corporations need black managers to
interface with the black consumer market, and police departments need
women to deal with domestic violence. But women and minorities deserve
equal access to all jobs in the workforce. Though Sturm and Guinier
endorse this principle, their proposal runs the risk of typing jobs
by gender and race, thereby validating the patterns of internal segregation
that exist within many job structures.
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