Commentary Magazine

Affirmative Action

To the Editor:

In recent months COMMENTARY has provided a forum for those wishing to attack prevailing affirmative-action programs [“Why Bakke Won’t End Reverse Discrimination:!” by William J. Bennett and Terry Eastland, September 1978; “Why Bakke Won’t End Reverse Discrimination:2” by Nathan Glazer, September 1978; “Are Quotas Good For Blacks?” by Thomas Sowell, June 1978]. These critics have adopted the major arguments embraced by opponents of racially-conscious employment and academic selection.

As a black who has recently completed undergraduate and legal education, I should like to call upon my past experience, and somewhat limited knowledge, to challenge these views.

1. The majority of Americans—both black and white—are opposed to preferential treatment for minorities. Consequently, the will of the majority has been thwarted by a strongly committed minority.

Curiously enough, of the views expressed by the opponents of affirmative action, this is the one I have the least quarrel with.

This is not to say that I have any faith in the validity of the public-opinion polls relied upon by Messrs. Sowell and Glazer. Quite the contrary, the bizarre and presumably erroneous conclusions that polls often report (e.g., that a majority of Americans are opposed to the Constitution and the Bill of Rights) demonstrate that opinion polls are a highly crude method of assessing public sentiment. Rather, my central quarrel is with the simplistic assumption that there is something undemocratic in allowing a committed minority to dictate policy that affects a less committed opposition majority.

For the most part, a rather small percentage of Americans opposed to affirmative action are actually affected by such programs. These are individuals who are marginally qualified for their chosen field of study or employment. The remaining opponents—either because they possess clear qualifications or because they lack such qualifications—are not directly affected by affirmative-action policies. . . .

Pitted against this largely apathetic majority is, to use Mr. Sowell’s words, “a highly committed minority” which, for a variety of reasons involving either personal stake or philosophical belief, strongly supports racially-conscious selection policies. Due largely to this group’s commitment, affirmative-action programs have continued to survive.

Far from being undemocratic, this state of affairs is part of the essence of democracy. From the congressional filibuster to the protections of the Bill of Rights, our democratic system affords safeguards which protect minorities and in many cases allow their views to control policy.

This state of affairs stabilizes a democratic system and channels the potentially volatile discontent which could result from allowing a marginally committed and apathetic majority to dictate policy to a more seriously committed minority.

2. Affirmative-action programs are ill-suited methods for alleviating discrimination.

By adopting a limited view of the goals of affirmative action, critics have asserted the failure of such programs.

The authors . . . (and Justice Powell in Bakke) argue that racially-conscious academic selection is an ill-suited method of increasing the number of minority professionals servicing minority communities. But proponents of affirmative action, while, of course, wishing to provide increased service to the minority community, hardly base their advocacy upon this single goal.

The professions from which minorities have traditionally been excluded, in addition to serving the public directly, also serve it indirectly, through their influence over a variety of decision-making processes. By increasing their representation in professional careers, minorities will also be so served. My own recent experience illustrates this point.

Upon graduation from law school, I chose to accept employment with a major New York law firm. Our clients include, among others, an automobile manufacturer, a major domestic bank which lends substantial sums to minority businesses, and an adoption agency which places a large number of minority children in foster and adoptive homes.

Each of these, and similarly situated institutions, makes decisions which affect the lives of its minority employees, customers, and clients. Of necessity, attorneys for such institutions often influence these decisions.

An attorney from a minority background will frequently view problems from a perspective that differs from that of his white colleagues. While his views might not prevail, and in many instances might be of limited value, the fact that they are heard is in and of itself a socially desirable and worthwhile result.

The benefits of minority representation in the legal profession are not limited to the private sector. As crime statistics continually indicate, a disproportionate number of minorities face prosecution under the criminal-justice system. It is to be hoped that the presence of minority prosecutors will limit the extent to which these prosecutions, or the failure to prosecute white offenders, are determined on racial grounds. Additionally, the presence of minority prosecutors will help to limit the impression often given that the criminal-justice system is a mere instrument for minority oppression.

These arguments are not, of course, limited to the legal profession. Minorities entering the business sector can assist in developing policies which take account of minority opinion.

When viewed from this perspective, much of the criticism by the opponents of affirmative action is undercut. Mr. Sowell, for example, asserts that the continuing disparity between black and white incomes demonstrates the failure of affirmative action. However, since many of the fields of employment which affect the lives of minorities, such as social work and teaching, can hardly be characterized as financially lucrative, this argument is fallacious. The real question is whether minorities have been assimilated into a variety of influential fields, not whether they have gained financially from such assimilation.

3. The most desirable system for academic and employment selection is one which relies exclusively upon examinations, numbers, and scores.

In recent years, increased interest has arisen in graduate and postgraduate education. Due to the larger number of applicants, students who achieve scores on standardized test and grade-point averages which in former years would have been sufficient to gain entrance into particular fields of study are now categorized as academically unfit. These students are far from incapable of completing their desired course of study; rather, they are victims of a system in which the supply of academic places has not kept pace with the increased demand.

In an attempt to alleviate the harshness of this situation, educational institutions have followed Harvard’s lead and adopted a system which attempts to evaluate, for lack of a better term, an applicant’s “personal character” as well as his intellectual ability. The race of each applicant has become relevant to this inquiry.

Curiously, opponents of racially conscious selection practices contend that this system, which delves broadly into each applicant’s background, is more dehumanizing than a system which, to quote Mr. Glazer, places “. . . an exclusive reliance on examinations, numbers, scores.” Underlying this view is what I would characterize as an undue faith in the ability of standardized testing to evaluate an individual’s aptitude for a particular course of study.

This faith is not generally shared by individuals who have recently taken such tests. Every graduate or undergraduate student I have ever discussed standardized testing with can relate a horror story concerning a colleague of substantial intelligence who has performed poorly on such tests. Conversely, students are generally familiar with some not particularly bright classmate who has achieved high scores on standardized tests.

When one takes into consideration the prevalence of the mistaken evaluations based on standardized tests as well as the fact that under the present state of expansion in applications many academically capable students are denied admission, the inadequacy of a system which relies exclusively on numbers becomes clear.

The Harvard system has more to say for it, however, than that it tempers the harshness of exclusive reliance on test scores. It is, rather, the most rational method of allocating limited academic places.

Despite Messrs. Bennett and Eastland’s assertion that in “. . . the context of professional schools, . . . for obvious reasons, much greater weight must be placed on academic qualification . . .,” it is in this cos-text’ that the value of a racially-conscious system becomes evident.

Ideally, the major function of professional life is public service. The intellectual ability of the individual practitioner is only one quality necessary for the provision of such service. Often, the practitioner’s “personal character” may be of equal, if not greater, importance.

In the legal profession, for example, an attorney’s patience with, understanding of, and compassion for other human beings are often as crucial as his ability to engage in theoretical legal analysis. These personal qualities will assist him in interviewing witnesses, eliciting facts from clients, and in serving as a negotiator attempting to develop settlements which will satisfy all parties to a dispute.

Certainly, similar qualities are essential to physicians in diagnosing their patients’ ailments and to teachers in imparting knowledge to their students.

While admittedly the race of an applicant will not guarantee the presence of these personal strengths, it may, in addition to other information about an applicant, suggest their presence. . . .

I have, in this rather long letter, tried to enumerate some of the areas in which I disagree with the opponents of affirmative action. I believe, however, that our fundamental disagreement lies elsewhere. . . . The COMMENTARY authors appear unwilling to acknowledge the hardships that will result from an abandonment of affirmative action. On the other hand, I am willing to concede that a continuation of the present system will operate as a burden upon many whites presently competing for limited employment and educational positions. Nevertheless, in view of this country’s deplorable history of racial discrimination, such a course is, regrettably, demanded. . . .

Michael H. Warren
New York City



William J. Bennett and Terry Eastland write:

Michael H. Warren takes us to task for arguing that great weight should be placed on the academic qualifications of candidates for admission to professional schools. But in arguing his point, he admits that intellectual ability is a quality, though only one quality, needed by a sound professional. We agree. It is only one quality, but it is a necessary one. As the test and grade scores cited in our article make plain, this quality is not present in many of the minority applicants admitted to professional schools. Although we agree with Mr. Warren that the patience, understanding, compassion, and character of applicants must also be put in the balance, these qualities do not cancel the importance of intellectual ability. Further, the personal attributes Mr. Warren describes are just that: personal attributes. Character is something an individual possesses, not something a group possesses. We would approve and applaud an admissions system that places a value on the personal character of applicants, but we would not have that system assign a “character score” on the basis of a person’s race. To do so would be racism.



Nathan Glazer writes:

  1. On the opinions of the majority: I agree minorities do, and in many cases should, determine policies on issues on which they feel strongly and others do not. But there are two caveats: first, on issues where fundamental principles are at stake, as I believe they are in this case, one cannot easily discount the views of the majority. Second, I would not underestimate the commitment of those who oppose quotas. Thus, rather than “stabilizing a democratic system,” statistically-oriented affirmative action may heighten the level of internal conflict.
  2. I fully agree that law and medicine need the perspectives of all groups, and that practitioners from a minority group may have qualities that make them more effective as practitioners dealing with members of the minority. And here I disagree with Justice Powell in selecting one narrow ground for approving race-conscious admissions policies (to increase academic diversity). The question remains, how is this to be done, and at what cost to other values, in professional education and professional practice?
  3. In my article I did not come out for limiting the criteria for selection to scores on tests. I said that that was one way of guaranteeing race would not be a factor in the selection process, and that such approaches were used in many countries, but I accepted—and accept—the legitimacy of taking many factors into account, including race. My problem is, first, whether such a narrowly balanced Supreme Court, reviewing further cases in which civil-rights and federal-government lawyers argue for quotas, will be willing to live with Justice Powell’s compromise, and, second, what limits we are to set in allowing race to operate as one factor in the selection process. Scores on tests have their limits, but when the disparities between scores on two groups are as wide as they were in the Davis Medical School admissions process, then one value has been allowed to dominate all others—such as those which emphasize the scientific abilities of prospective doctors.

I find it interesting that Mr. Warren is so willing to trust to the good will and good sense of admissions committees who will be going beyond scores to take into account the various factors important for medical and legal practice that cannot be captured by tests. Clearly something important has happened in American life when both sides agree that discretion will be used to increase the number of minorities, rather than to discriminate against them. But some defenders of statistically-oriented affirmative action want a large place for discretion, so that if the numbers do not come out right, they will be able to argue that discrimination has been at work.

A final point: opposition to goals and quotas should not be taken as opposition to affirmative action. Affirmative action initially called for race- and group-consciousness in all the procedures that go into selection so that the minorities would not be excluded by limited recruiting or by unwarranted expectation of discrimination. In the Executive Order setting it up there was no reference to statistical tests of the adequacy of an affirmative-action effort. Unfortunately the term “affirmative action” has come to mean setting statistical goals and quotas, which must lead to action on the basis of race, color, and national origin. I am not an opponent of affirmative action: what I oppose in affirmative action, as it has developed, is the setting of statistical goals and quotas.



Thomas Sowell writes:

Since Michael H. Warren simply redefines democracy out of existence and substitutes anecdotes for empirical evidence, I wonder what is left as a basis for a rational discussion.

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