affirmative action in law schools- the uneasy truce

University of Chicago Law SchoolChicago Unbound

Journal Articles Faculty Scholarship

1992

Affirmative Action in Law Schools: The UneasyTruceRichard A. Epstein

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Recommended CitationRichard A. Epstein, "Affirmative Action in Law Schools: The Uneasy Truce ," 2 Kansas Journal of Law and Public Policy 33 (1992).
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Affirmative

Action in

Law Schools:

The Uneasy

Truce

Richard A. Epstein

This lecture was given onSeptember 12, 1991 while

Professor Epstein was serving asthe Koch Distinguished Professor

of Law and Economics at theUniversity of Kansas. The KochDistinguished Professorship of

Law and Economics is supportedby the Mary Robinson Koch Chair

in Law and Economics. Thelecture was specially adapted for

publication in this Journal.

Background and FrameworkIf modem legal education can identify an issue that has

generated more discussion and less agreement thanaffirmative action, I should like to know what it is and how itought to be resolved. The question has become the mostcontentious of our time, and the debate, I am sorry to say, hasoften been more destructive than informative. In this speech Iwill add my own small contribution to the ongoingcontroversy in the hope that I can disentangle a number ofissues that are too easily confused with one another. I do notthink that any single person can bring this issue to closure. Itis enough, perhaps, to advance the discussion.

In talking about these issues, it is impossible to separatethe question of affirmative action from the larger issues ofsocial and political theory. While this is not the place to argueanew for propositions that I have sought to defend elsewhere,I do think that it is appropriate at the outset to indicate theintellectual presuppositions that I bring to this issue. Inessence there are two major strands to my position. The firstis theoretical: what is the technology that one brings to decidematters of entitlement? In general I belong to the camp ofthinkers which is broadly described as consequentialist; thatis, those who think that the decision between different legalrules, or as the case may be, different social practices, shouldbe based on the consequences they generate for the groupsthat they regulate.

Under this sort of theory, it is important to identify whatgoal you seek to maximize and to state it in a way that isuniversal and not exclusive, so that the gains and losses of allpersons are registered in the social calculus. This emphasisleads me to embrace a Rawlsian veil of ignorance as a way ofasking people to make judgments about the future whenignorance of their own position sets them on the path to virtuenotwithstanding their strong inclinations to advance their ownself-interest wherever possible. In some circumstances I havebeen called a utilitarian, in others a Paretian, and in still othersan unthinking devotee of law and economics. All these labelsmay be true, but until someone comes up with an alternativemethod of political theory that skirts all the difficulties (bethey of prediction or aggregation) that dog my generalapproach, I will regard the labels as descriptions and notcriticisms.

Richard A. Epstein is the James Parker Hall DistinguishedProfessor of Law at the University of Chicago.

Spring 1992

HeinOnline -- 2 Kan. J.L. & Pub. Pol'y 33 1992-1993

Epstein

If methodology is one thing, then Thepolitical orientation is quite another.With regard to most questions of rightsand duties within a legal system, I regard redistribumyself as a limited governmentlibertarian who thinks that the state fromshould have far fewer powers than thosewhich are conceded to it today. In cannot begeneral I think that government has twomajor functions to perform, and possiblya third, over which I am very uneasy.First, the use of public force isappropriate to restrain force and fraud. policy. ASecond, public force can be used, if justcompensation is provided, to overcome action prdthe various bargaining breakdowns thatexist when a strong system of libertarianrights is given full force and effect. The the impstate can thus use coercion to overcomethe problems of exhaustion of the fishery across claor the common pool of resources, so longas it pays just compensation to those ipreservipeople whose property is sacrificed forthe common good. The hard questions,over which I still have much doubt, are subspolicies of income and wealthredistribution whose results I fear are persons. 1often counterproductive no matter howlaudable their motives, an overa

As an initial foray, I think that it isuseful to divide the question ofaffirmative action into two parts. The academifirst is whether an institution should beallowed to practice affirmative action; and to a Ithe second is whether, if that right isconceded, an institution should take the of opiniopportunity that is extended to it. Thefact that I am deeply skeptical about d ftestablishing state institutions of higher ivideflearning as a matter of first principlemakes matters more difficult; it is still student.necessary within the present socialenvironment to ask whether the same Oanswers to these questions should begiven for public and private institutions.

The source of my uneasiness about public institutions ofhigher education is as follows. One dominant feature of staterun institutions is that they offer tuitions, particularly for in-state students, that are far below cost and far below a market

implicit

tion of wealth

ich to poor

defended as a

Form of social

n affirmative

ogram blunts

licit subsidy

sses, although

s the implicit

ies across

It also leads to

l decline in

c standards,

,alkanization

on that can

iculties and

from each

ther.

clearing price. The huge subsidy leadsto a long queue of applicants, only someof whom can be accepted. Thetraditional tests of merit have led to theunhappy situation where well-to-dostudents gathered up a huge portion ofthe places, which were funded by taxrevenues collected from less affluentpersons whose children were unable tomeet the stiff academic standards. Theimplicit redistribution of wealth fromrich to poor cannot be defended as acoherent form of social policy. Anaffirmative action program blunts theimplicit subsidy across classes, althoughit preserves the implicit subsidies acrosspersons. It also leads to an overalldecline in academic standards, and to abalkanization of opinion that can dividefaculties and students from each other.Since we cannot privatize stateinstitutions, at least in the short run, thepreferred solution, therefore, is to raisetuition levels to bleed out much of thesubsidy on all sides. The matter,however, is sufficiently complicated thatI cannot address it at length here. Forthese purposes, I will treat stateuniversities as indistinguishable fromprivate ones with whom they competeon uneven terms, and get on with theanalysis of the affirmative actionproblem proper.

Who Decides?Turning to the first question of

affirmative action, I think that privatefirms and institutions should be allowedto engage in affirmative action programsas a matter of course with no questionsasked, and that they should be allowedto adopt systems of quotas with thesame degree of freedom.1 My views onthis subject are, however, subject to amajor caveat, namely that the

antidiscrimination laws under Title VI12 and elsewhere mustfirst be repealed. As I see it, the case for limiting the right ofprivate institutions to engage in affirmative action rests solelyon the need to maintain some counterweight to the enormous

The Kansas Journal of Law & Public Policy


The Uneasy Truce

pressures to adopt affirmative actionprograms that the antidiscrimination lawsimpose on private institutions. The currentlegal system looks very closely at anypractice whose effect is said todiscriminate against certain protectedgroups. In many cases, perfectly sensibleand ordinary practices, the kinds that onewould observe in an environment in whichall persons were of the same race or sex,may be attacked on the basis of thedifferential success enjoyed by membersof the two groups. That pressure caninduce a firm or a law school to adopt anaffirmative action program which it wouldnot adopt if left to its own devices.

Because the pressures all come fromone direction, it is difficult to concludethat all affirmative action programs arevoluntary. The counterfactual assertion -that these programs would remain in forceeven if Title VII were repealed tomorrow- has to be viewed with some caution,

The presence of Title

VII thus muddies the

waters and makes it

difficult to decide

which ongoing

affirmative action

programs would

survive and which

would perish.

for even if theprograms remained, they might take on a different form or bepursued less intensely than we currently observe. Yet, by thesame token, some of the massive political sentiment that hasled to the present legal configuration under Title VII wouldcontinue to exert its influence, so we cannot conclude that allaffirmative action programs are simply part of a coldlycalculated plan to minimize anticipated liability under suit.The difficult question is finding out which portions of theprograms are attributable to fear of legal sanctions and whichare not. The presence of Title VII thus muddies the watersand makes it difficult to decide which ongoing affirmativeaction programs would survive and which would perish.

But what should be done in an environment in which thereis no Title VII? At this point there is no need to create acounterweight against affirmative action. Indeed, there maybe institutions that for reasons sufficient unto themselvesdecide to base their hiring or admissions policy on grounds ofrace, religion, or national origin. In general, however, Iregard this as a welcome safety valve and not a matter forpublic worry and concern. The concentration of certainindividuals in select groups changes the composition of othergroups of which they are no longer members. It follows,therefore, that these other groups will find it easier to practiceaffirmative action if they so choose. The internal divisionsthat mark this battle are reduced by a voluntary sortingmechanism, where all persons search out the institutions

whose affirmative action policies, reversediscrimination policies, or colorblind andsex-blind policies are most attractive.Indeed, it is just this empirical sense thatthe pain of exclusion (suffered under anyregime) is smaller than the pain ofdiscord, where entry is free andalternatives are numerous, that undergirdsmy libertarian principles.

Let me see if I can further illustrate thepoint. I believe the great mistake in thedebates over the Civil Rights Act of 1964was the insistence that "we the people"could make a collective determinationthat matters of race and sex wereirrelevant in most (if not all) hiringsituations, educational programs, and thelike. The error in that propositionsurfaced before the ink was hardly dry onthe Act. The call went up not for acolorblind system that looked only to themerits, but for a race and sex-conscious

system that required certain balances within given institutions.The categories of merit and race, and merit and sex were notregarded as mutually exclusive. The legal debates over theinterpretation of a colorblind statute have all been about waysthat courts, through dubious and artful means of construction,have reversed field on the original social understanding andleft, in the wreckage, a host of dubious and refined theories ofstatutory construction that no one would have thought fit toembrace if the political stakes had not been so enormous.

3

The initial mistake of the 1964 Civil Rights Act was not itspreference for neutral colorblind and sex-blind norms, but itsinsistence that there should be any collective blindness normat all. Such a social norm should not exist; let those firms anduniversities who think one way do what they will, and letothers go their separate ways. In this regard, it is a mistake toassume that the profit maximization posited by classicaleconomics, or indeed any other plausible social objective,imposes an economic or legal duty on private organizations.It is merely a prediction on how they are likely to behave,given the usual postulates of maximization by self-interestedpersons. If that prediction is falsified because someinstitutions decide that it is in their interests to sacrifice cashreturn, or academic excellence, or equality of persons, then sobe it. The theory of description and prediction should berevised, but the world should not be recreated in the image ofa theory that has failed. Private institutions should be allowedto adopt the policy of their choice, and the economic theorists

Spring 1992


Epstein

can hastily add another argument into [Ijt is clindividual or composite utility functions inorder to explain how the unanticipatedbehavior still maximizes utility - a utility Americathat is imperfectly correlated with cashreturn on the basic investment. of LaDecentralization of the affirmative actiondecision could yield enormous gains. I do (AALSnot abandon my libertarian instinctssimply because the stakes have gottenhigher. High stakes provide all the morereason why these questions should becorrectly decided. insistenc

Public institutions are, of course, adifferent issue because they are funded by adopntax revenues and their employees act asrepresentatives of all citizens. Theprinciple of freedom of contract has less affirmatiappeal for the state than it does for privateparties, owing both to the coercive power inof the state on matters of revenue andtaxation, and the enormous monopoly nondis(position that it enjoys through its controlof licenses, incorporation, highways, andindeed every area of public affairs.

4 The provisioLdoctrine of unconstitutional conditions isample testimony to the proposition that a to its acsystem of limited government mustconstrain the way in which the government rcontracts and regulates. I confess anenormous fear of any system of self-conscious favoritism, and I am most uneasy about any publicinstitution that singles out one group for special treatment. Itis only the widespread public support for affirmative actionthat causes me to relent against my better judgment and totolerate the dominant practice of affirmative action, which inpractice today will be directed only toward some protected orfavored groups. But even here we should struggle to findsome way to limit the scope or extent of the practice.

If I am correct in my assessments, then it is clear that theAmerican Association of Law Schools (AALS) has goneseriously astray in its insistence on tying the adoption of anaffirmative action (or indeed a nondiscrimination provision ofany sort) to its accreditation rules. Initially I am very troubledwhy any body should have the power to order accreditation, atleast where it functions as more than a Good HousekeepingSeal of Approval. Yet AALS and ABA certification count formore than this, given that the ability of graduates to gainentrance to the practice of the bar may be blocked if

!ear that the

7 Association

w Schools

')has gone

astray in its

on tying the

ion of an

ve action (or

deed a

,rimination

of any sort)

creditation

ules.

institutions, either public or private, areunable to obtain the requisite approval.The great debate over the existence,extent, success, and justification foraffirmative action should slow downthose individuals whose moral certitudeoutruns their capacity for wise self-restraint. Just as it is odious to have anycharacter test for admission to the bar thattakes into account the political beliefs ofapplicants, it is also odious at theinstitutional level to have any system ofaccreditation that departs from questionsof excellence and enters into the swirlingwaters of partisan politics. I think that itis utterly inadvisable for the champions ofa colorblind or sex-blind standard toimpose their views on the rest of theworld through the accreditation process.The situation is no better - and perhapsworse in light of its retreat from anyuniversal appeal - when the championsof affirmative action work overtime toattack defenders of the colorblindstandard. It is clear that both sides cannotbe correct in their moral suppositions.But there is nothing that stops both sidesfrom being incorrect, first in theirjudgments, then in their willingness toback their judgments with force.Solutions to this vexing and controversial

issue will require prudence and restraint rather than aggressiveintervention.

The Wisdom of Affirmative ActionAlthough I am willing to let the chips fall where they may,

in some instances - or to be more precise in one instance -I have to approach the question of affirmative action not onlyas an outside observer or a would-be regulator. But also, likeother academics, I must make a moral judgment as a memberof my institution's governing structure. So, speaking only formyself, am I for it or against it?

My first impulse is not to answer this question at all, for Iwould be stunned if there were any universal solutions to theaffirmative action question. Although to the outside world alllaw schools, like all lawyers, may seem pretty much alike,when we move closer we realize the wide range of differencesthat exist among institutions. Some have national influence;others are regional or statewide; and still others exist to serve



The Uneasy Truce

local markets. Some law schools havenight programs and others do not.Some specialize in areas that reflect theinterests of their communities: loggingand environment in the Northwest, racein the inner city, health care in ruralcommunities, and so forth. In someinstances the student bodies have strongcredentials and the affirmative actionstretch - that is, the departure fromtraditional standards - may be great;in others the adjustments that arerequired to establish the program couldbe far smaller. Some universitiesreceive public funding; others areprivate; and still others have a religiousorientation. The range of variables isso numerous that it is quite possible thateach institution will think that it fitsinto a single cell. It is highlyimprobable that the same approach toaffirmative action will be adoptedacross the board because the costs andbenefits of that decision will bemarkedly different. We should,therefore, foster - and it is a theme to

It is highly improbable

that the same approach

to affirmative action

will be adopted across

the board because the

costs and benefits of

that decision will be

markedly different. We

should, therefore, foster

... diversity across law

schools.

which I shall return - diversity across law schools.The great temptation, therefore, is to say nothing at all, but

I shall overcome it in order to address a set of issues that areof concern to us all. In dealing with the problem I shall focusfirst on the relationship of affirmative action to merit selectiongenerally. Next, I will address the forward and backwardjustifications for affirmative action, or, as it is now called,diversity. And finally, I shall discuss the special problemsassociated with faculty hiring.

Traditional and revised standards of meritLet me start with one observation: it is far easier,

conceptually, to be against affirmative action than it is to befor it. My point has nothing to do with the intrinsicdesirability of the alternative decisions, but with the logic ofthe decisions under the two different regimes. To hold fastagainst affirmative action in all its manifestations is to adopt avery simple rule of decision. Variables that are collectivelyregarded as measures of merit but that ignore matters of raceand sex offer the only permissible measures. Grades, boards,letters of recommendation, interviews, and other similarelements are normally among the variables used in measuringstudent merit. A somewhat different mix of variables is

are very different.how much weight

appropriate to decide merit forprospective faculty members: grades,law review experience, clerkships, workexperience, references, areas of expertise,writing, and the like.

The manner in which the traditionalstandards of merit are fashioned isirrelevant to this decision. To say thatrace is irrelevant across the board, forexample, is to affirm that two decisionsets always yield equal outcomes if theirfirst variables are equal: Decision(Merit,Racewhite) = Decision(Merit,Raceblack), and so on down the line, forany level of Merit. Similarly if Merit Xis greater than Merit Y for two applicants,then X is preferred to Y, regardless ofwho is Racewhite or Raceblack. Inessence the rejection of affirmativeaction reduces the class of facts that haveto be taken into account. Given theassumed irrelevance of certain variables,a uniform and unambiguous procedure isadvanced.

Once it is decided that race or sex is tobe regarded as a relevant factor, mattersFor now, someone has to figure exactly

these factors ought to be given. At oneextreme it is possible to have a decision rule in whichDecision(Merit, Racewhite) < Decision(Merit, Raceblack), nomatter what values the Merit variable assumes for the twocandidates. In effect this is a principle of strict racialexclusion that in form (if not in motive) is indistinguishablefrom the practices of Jim Crow whereby explicit racialsegregation or exclusion occurred at all levels of education.Few members of mainstream institutions embrace thisalternative because it implies that the supporters of theprogram, who are white or male, should be excluded fromparticipation in it by virtue of their color or sex alone, unlessthere is some exemption for current faculty and students as theprice to procure their support. Yet, once this extremealternative is rejected, someone has to decide exactly howmuch of an affirmative action preference will overcomewhatever differences exist on the merit scale.

At this point, the alternatives become difficult. Oneapproach is simply to accept the soundness of the usualstandards, and then to agree on the size of the affirmativeaction discount. It becomes appropriate, therefore, to decideto add one point to a grade point, or points (on the new scale)

Spring 1992


Epstein

to a Law Board Score in order to make the If the arequisite comparisons in the admissionprocess. A political decision determinesthe number chosen, and the absence of any grades oclear benchmark suggests that there couldbe enormous difficulty in procuring any is undelcollective agreement on the size of thenecessary adjustments. In addition, this knowiprocedure requires decision makers toconfront the level of formal differencesthat might exist on admission criteria, actualmost notably board scores and grades. Ifthe adjustment on grades or board scores is betweenundertaken without knowledge of theactual differences between group scores, then atthen an institution risks the embarrassmentof having an affirmative action programwith only a tiny number of affirmative ril

action admissions. That would be thecase, for example, in many elite embarinstitutions if the size of the affirmativeaction preference were only equal to the havingpreference given to the children of alumni.Thus, the tendency in practice is to reverseengineer the process and to decide on the action plevel of the bonus only after theanticipated harvest of new students from only a tithat adjustment has already beenestimated. Any insistenc6 that an affirmteducational minimum be set before theprocess draws to a closure is often lost inthe political struggle. adn

A second approach to the question ofaffirmative action is much more thorough in its implications.The approach argues that the bonus point idea is whollyincorrect because it assumes that the word "merit" should beplaced in quotation marks: any measure of merit is itself aproduct of racist or sexist institutions, and should, therefore,not be given any respect at all. The idea of adding points, oroverlooking weaknesses, or reversing the order of candidatesis thus displaced by a system that decides to overhaul theentire admissions process, and by implication, the educationalprocess from stem to stem. It is at this point that I fairlyblanch, for while I am quite willing to admit that anyadmissions procedures based on the traditional norms willmake whoppers in individual cases, I cannot think of any setof decision tools that I would adopt, apart from the affirmativeaction question, that could be regarded as preferable in thebroad spectrum of cases.

ijustment on

r board scores

taken without

edge of the

differences

group scores,

institution

sks the

assment of

n affirmative

rogram with

7y number of

itive action

issions.

I do believe that the traditionalstandards - the standards of excellenceunder which I was raised, educated,tested, hired, and promoted - are validstandards and that the candidates whohave progressed under this system areby and large better than those whosesearch for positions has proved in vain.The constant reconceptualization of theacademic universe may have appeal forsome. But no matter how refined andstrained their arguments, no substituteexists for persons who can write clearlyand think straight, and who arecomfortable with a wide range of fieldsand approaches, from metaphor inpoetry to the elegance of the normaldistribution in statistics. There may bepractices in law schools and otherinstitutions of higher education that areworthy of our sharpest condemnation,but the standards of excellence are onesthat we should not sacrifice merelybecause we do not like the racial orsexual identities of the people that weget, or the compromises that we have tomake, when we use some version ofmerit correction in order to design andimplement an affirmative actionapproach.

Moreover, there is a sense in which Ithink that the concern with merit andexcellence is recognized even by the

supporters of affirmative action. Affirmative action dividesthe admissions process into two or more pools. But rankorderings have to be made in each of those pools, given thetwo queues for individual places. As long as slots are notreserved exclusively for affirmative action candidates,someone has to decide the standards that should be used inorder to admit the rest of the class. In this regard, I havenever seen the slightest willingness on the part of any lawschool to take the same skeptical attitude toward thetraditional tests of merit urged in the debates over setting upaffirmative action programs. Instead the usual rules arefollowed, and the revised, skeptical account of merit isreserved only for the affirmative action candidates that, bydefinition, cannot get in under the traditional standards. Yetwithin the pool of affirmative action candidates, does it makesense to ignore board scores and grades, especially when we



The Uneasy Truce

can only substitute personal connectionsand political litmus tests in their place? Ifone really thinks that these traditionalstandards are misguided or worse, thenthey should be abandoned across theboard. But they are not. For want ofanything better they are normallypreserved in both pools.

This point also has importantimplications about the way in which anaffirmative action program, if any, oughtto be run. The use of quotas has beenpowerfully denounced in this land, evenby those who support affirmative actionprograms. But why? If an affirmativeaction program is to be adopted, thenquotas should be used because they stripaway the illusions of what is being doneand preserve at least some fraction of theadvantages of the traditional system. Wecan rigorously insist that applicationswithin the affirmative action class beranked by the usual standards of merit.The incentives for hard work thus can bepartially preserved, and the opportunity forpolitical influence and intrigue whichalways arises with the adoption ofdiscretionary standards can be curbed.The question of who gets in underaffirmative action should not depend uponpolitical affiliations, personal contacts, andinfluence, or any of the other factors thathave made impersonal admissions such an

In principle,

I cannot mount any

persuasive legal

objection, that is, an

objection of sufficient

weight to justify the

public use of force, to

any form of

discrimination

practiced by private

institutions, no matter

how odious and

offensive I regard

their behavior.

important part of the legal system. So all in all, I think thatwe should not shoot the messenger if we have affirmativeaction. The merit adjustment system is a way to limit theproblems with affirmative action while acknowledging thetraditional requirements for excellence that should dominate auniversity-an imperfect accommodation, to be sure, but asensible one nonetheless.

Backward and Forward Looking JustificationsThe inquiry, at this point, can go in one of two directions:

first, do we adopt an affirmative action program at all, andsecond, if we adopt it, what is the size of the variation? Here Ishall again concentrate on student admissions where theexplicit standards might play a larger role than they should inthe area of faculty hiring. I think two general classes ofjustifications can be used for affirmative action, but I find that

each is incomplete. The first of theseclasses regards affirmative action as asystem of rectification for past systematicwrongs, and thereby employs thelanguage of corrective justice for theredress of grievances. The second ofthese classes puts aside the issue of pastwrongs, and argues on a forward-lookingbasis that affirmative action, nowrelabeled diversity, is necessary for thegood of the institution at large. Let mecomment on both of these.

RectificationAbout rectification, my libertarian

instincts leave me more or less of twominds. In principle, I cannot mount anypersuasive legal objection, that is, anobjection of sufficient weight to justifythe public use of force, to any form ofdiscrimination practiced by privateinstitutions, no matter how odious andoffensive I regard their behavior. Just asothers cannot use their sense of outrage tolimit my sense of action, I cannot usemine to limit theirs. But historically I donot regard decisions to adoptexclusionary programs as invariably free,and for the same reason that I do notregard the contemporary programs ofaffirmative action as voluntary. Thethreat of legal force skewed thealternatives so that it was harder to

maintain a colorblind institution in the face of official JimCrow, and for the inverse set of reasons, it is very difficult tomaintain colorblind institutions today.

The pervasive nature of the wrongs influences the choiceof remedy. The easy question is whether the older systemshould be dismantled, and to that the only appropriateresponse is yes by destruction of root and branch; no personwho believes in limited government can think that the properrole of the state is to sponsor the oppression of one group byanother. Removal of older barriers is cheap to do and easy tomonitor. Far harder questions arise, however, aboutcompensatory justice, where it is necessary to ask whetherdamages should be paid for past wrongs. It is here that I thinkthe problems are insuperable in many instances, althoughagain it is critical to ask the question in two different ways.

The first approach is to ask whether any individual victims

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Epstein

of discrimination should be allowed to If son,maintain actions against private persons.The initial difficulty is that privatediscrimination (apart from its coercive restitutioJstate setting) is, in my view, not a privatewrong. And even if it were, who is the it shoulwrongdoer in any particular case, given thesystem-wide adoption of the practices? cash anTo pick out single threads from elaboratetapestries is beyond the power of a systemof litigation. So, the quest has to be currencabandoned, and it typically is. If there is asystem of individual remedies, therefore, it must be directedagainst government or public bodies who were responsible forthe wrongs. But again, the passage of time makes the damageremedy very problematic. It is difficult to identify theparticular victims of discrimination. In some instancespersons who were discriminated against in time A receivedsome race-based benefit from the state at time B, which couldwell count as compensation for the wrong suffered, if not inaddition, the creation of still a new wrong against still a thirdclass of persons. But whether it is a simple down payment ona larger obligation, or an overpayment on an obligation fullydischarged, it is beyond my power to say. All that is clear isthat the year is no longer 1960, and it is no longer a questionof undoing a past of unrelieved domination in one direction.The crosscurrents and interactions of the past thirty yearsmake it far harder to identify victims and wrongdoers.

In addition, if there is to be compensatory justice toidentified victims, it surely should take the form of cashpayments and not special places in law schools or otheracademic institutions. Awarding places for compensationmay avoid the budgetary implications of damage actions, butit does nothing to remedy the previously existing situation.The place that is granted in compensation to X is taken from Y(as we cannot assume that institutions have infinite capacitiesto expand). A further question arises as to why suchdisplacement should be tolerated when the wrongs of the pastcan be paid off without weakening the institutions that have toprepare students for tomorrow. If Y is someone who hasbenefitted from other government programs' largess, then thesituation is more odd because affirmative action becomes atool for the benefit of some rich people at the expense of thosewho are not as wealthy. If some form of restitution isrequired, it should be paid in cash and not in the currency ofplaces. And once the point is put in that fashion, I think thatthere would be enormous reluctance to recognize the claim atall. Why should only the fortunate admittees receivecompensation when other persons, who also may have been

~e

n is

d b

dn

yo

orm of prejudiced are excluded yet a secondtime?

required, DiversityThe analysis then shifts to the other

e paid in side of the line. Do the forward-lookingjustifications for affirmative action offer

ot in the an explanation that the compensatoryones do not provide? Today, it is evidentthat these justifications have gainedground in recent years, as is shown by therise of the insistence on diversity in

education as an objective for affirmative action. In principle,no one seriously wishes to attack diversity. To speak ofdiversity is an effective way to get around the questions ofdifferential standards that are so troublesome with affirmativeaction programs. People are not accepted because they havebeen victims, nor are they given any special preference.Rather, they are accepted out of the conviction that theirpresence in the university or law school will enrich theacademic and other learning experiences that take place there.

There are, however, some deeply troubling aspects to thecurrent trend toward diversity. First, in some cases theposition is disingenuous. It is supported by people who thinkthat affirmative action is justified for the traditionalcompensatory reasons, but who are uneasy about saying so injust those terms. At least I have never heard anyone announcethat he or she is torn by being opposed to affirmative action asa means of redress, but supports it in the name of diversity.The correlation between the views is too strong to be purelycoincidental.

Second, neither diversity nor any other educational goalclearly justifies the level of coercion that the AALS wishes toimpose on law schools. If diversity is so great a good, then itshould be apparent to all, and coercion through accreditationshould be unnecessary. In truth, however, diversity is oftenthe calling card for practices which are the exact antithesis.The typical justification for diversity is that variety withininstitutions provides a certain insurance against bad times, justthe way diversification of a financial portfolio providesprotection against a risk that hits one firm but not others. Yet,if all institutions hew to the diversity line, then diversityacross institutions is lost; for if the program itself is flawed,then all institutions will suffer the adverse consequencesassociated with that flaw. A system of diversity applied at theinstitutional level, therefore, does not require all institutions touse the same criteria on hiring or admissions, but invites themto experiment with different policies of their own. If there arethose who think that a homogeneous student body or faculty



The Uneasy Truce

promotes learning and education, then the If we alprinciple of diversity at the institutionallevel should allow them to have their way.Thus, the principle of diversity, far from to becsupporting a system of mandatoryaffirmative action, calls for a withdrawal word forof the affirmative action question from theaccreditation system. matters

Nevertheless, whether an institutionwants diversity is a question that has to beanswered wholly apart from coercion. or appoi,Along some measures I think that diversityis desirable. I am very comfortable with we satthe position that students and facultyshould be drawn from different indepebackgrounds, have different intellectualorientations, and represent a broadspectrum of political views. But it is a thoughtdangerous business to assume thatintellectual diversity is heavily correlated of afalwith race or sex. In my own experience asa teacher I have seen little evidence of that very highproposition. I know men, both ascolleagues and students, who have beenthe most passionate defenders of pro-choice positions on theabortion question, and women, as colleagues and students,who have stressed the sanctity of life, even before birth.Many white persons have voiced the keenest awareness ofracial injustices in society. I have seen conservative facultyand students who are black, and I have seen liberals who arewhite. I am sure that there is some correlation betweenviewpoints and race or sex, but I think that diversity is, ifanything, advanced by hearing the traditional positionsadvanced from unaccustomed quarters and defended withstrange twists. Diversity of opinions can be achieved bygetting able people to think for themselves. This was a goalof the traditional admissions and appointments procedures,and one that they were able in large measure to achieve.What matters is not the tags of race or sex that people bring toa debate, but what they say, and what they say has to stand onits own. In my vision of the university, everyone always hasto be at risk in order to maintain intellectual sharpness andexcellence. The university should be the one place in whichall persons with odd accents, strange dress, and differentmannerisms can participate in and profit from a single debate.It is where intellectual separatism should be viewed withhostility and suspicion. If we allow diversity to become acode word for orthodoxy on matters of admission orappointments, then we sacrifice our independence of thought

!ow)me

ort)fa

tm

"rifnd

inse

Spn

diversity in the name of a false god - a very highprice to pay.

a code Student Admissions and Faculty HiringIn dealing with affirmative action thus

hodoxy on far, I have lumped together questions ofstudent selection and faculty hiring. But

rdmission some important differences between themshould be noted. A law school takesanywhere from one hundred to six

ents, then hundred students in the course of oneyear, and it must admit some multiple of

ice our the entering class. Necessarily, limitedinformation is available about each

ence of student, and it is impossible to make anaccurate guess of how any student will fitinto the student body or the life of thethe name institution as a whole. At some level, thecosts of affirmative action programs

Sod- a when measured against the traditionalstandards of excellence are limited, at

to pay. least if the size of the program is keptice ofairly small.With faculty appointments, the stakes

are higher. It is no longer a question of whether one can getthrough, but a question of whether faculty can add to the sumof human knowledge and can teach at the level necessary tobring out the best in students. I think there is far less play inthe joints than with student admissions. In this regard I amdismayed to see that in recent years the question ofaffirmative action has gone from being an issue of someweight to surging to the fore as the central and perhaps onlyissue that matters. In the years that I have sought to helpChicago graduates get positions in the teaching market, it hasbecome clear that the affirmative action discount is large forsex and huge for race, and that political matters have becomeso enmeshed in hiring decisions that some "diverse" facultiestoday ask whether it is permissible to hire anyone whosepolitics put him to the right of Teddy Kennedy.

An example will give some sense of what the gaps are: ablack woman who finishes in the middle of her class stands asgood or better a chance of getting a teaching job than a whitemale who has finished first, and who shows on his resumeclerkships, law review positions, or key government jobs.The discrimination that one sees is very widespread, in partbecause it is buttressed by a powerful antidiscrimination law.When the current dual standards are justified, the argumentoften reverts to attitudes and verbal distinctions that I hadhoped were no longer prevalent. Thus it is said that white

Spring 1992


Epstein

men are not "excluded" from positions,but that they will only be consideredafter the market has been combed forwomen and minorities who can takethose positions. It is as though Title VIIof the Civil Rights Act said that it wasproper to discriminate against persons aslong as there was not a complete refusalor failure to hire them.

The situation then leads to constantinternal confusion, for once hiring takesplace, evaluations have to be made onteaching and scholarship, and here it isdifficult to maintain the same standardsas were previously applied, given theknown weaknesses in the initial hire. Itis nice to say that affirmative actionhiring has worked out and thatcandidates have outperformed theirrecords, but it cannot be the case thatlong shots always finish in the money.If the standards applicable to affirmativeaction cases were universally applied,then the exhaustive search that has beenmade for hiring would have beenmisguided because huge numbers ofapplicants who never could havereceived positions would also be able todo the work. Matters only become morevexed as affirmative action hiresbecome affirmative action tenureappointments. Then, they rise to aposition in which they pass judgment onthe next generation of candidates, butwithout a secure scholarly base onwhich to make their judgments. At thispoint, there is a tendency for standardsof excellence to be eroded, becauseeveryone has to speak in code about thereasons for or against a candidate. Thelack of candor is one of the major costsof an affirmative action program.

And does it have any benefits? Hereagain I am driven to the skeptical side ofthe line. On balance affirmative action

On balance affirmative

action shows few social

benefits. In some cases

it might encourage

persons to work harder

because they know they

now have a chance that

before they never would

have received. But at

the other end,

affirmative action

encourages people who

might have worked

hard to slack off,

secure in the

knowledge that the

existing preferences

will allow them to

advance.

shows few social benefits. In some cases it might encouragepersons to work harder because they know they now have achance that before they never would have received. But at theother end, affirmative action encourages people who might

have worked hard to slack off, secure inthe knowledge that the existingpreferences will allow them to advance.A system that may help some in themiddle, but which dulls the incentive tosucceed at the top, is surely not a goodlong-term social investment. And withthe enormous commitment to affirmativeaction, it is very clear that the overallsituation on race relations has not gottenobviously better, and in recent years mayhave gotten worse.

In the end I think that universities haveto be jealous of the traditions andstandards that gave them the excellencethey need to survive and that has earnedthem the respect of the public at large.Affirmative action programs are not smalladditions to a university that can be keptoff to one side while business as usualcontinues. They go to the heart of what auniversity is and how it defines itsmission. It is very difficult to serve twomasters well, especially in the long run.We cannot have both excellence andactive affirmative action programs, orperhaps any affirmative action programsat all. In our capacities as facultymembers and students, I am still naiveenough to think that we should makeacademic excellence our dominantconcern.

It seems, therefore, that I have taken aposition that cuts sharply againstaffirmative action, and yet I have beenover the years moderately tolerant of apractice over which I have graveintellectual reservations. It is, in part,because so many of my colleagues arepersuaded by truths that I do not believethat I have never had the position to turnmy own skepticism into a hard and faststance. In part there are political reasons.I think that any institution that is all whiteor all male will not be able to maintain the

support of the public at large or even of its own alumni. Onmatters of race it is difficult to conceive of an institution thathas no black and no Hispanic students, which would be closeto the result under a colorblind admission system. Faced with



The Uneasy Truce

the extreme differences in outcome, I move to a positionwhere I am uneasily tolerant of practices that, on balance, Ithink are unwise.

I do not expect to persuade everyone to adopt relativerankings of what counts for the success of a law school orother academic institution, but that only brings me back to thefirst section of this paper. In areas of disagreement there aretwo possible approaches: the first is to insist that all

institutions follow a single rule determined by collectivechoice. The second is to allow each institution to go itsseparate way and then to allow each to reevaluate its owncourse of action in light of its own experience and theexperience of others. This second course of action has led tothe greatness of American universities. Its implicitrepudiation in the affirmative action programs will do much tohasten their decline.

Notes

1. For a discussion of this point at greater length, see RICHARDA. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENTDISCRIMINATION LAWS 412-421 (1992).2. Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(1983), makes it an unfair employment practice for an employer todiscriminate against any individual with repect to hiring or the termsof employment on the basis of an individual's race, color, religion,sex, or national origin.

3. For two notable examples, see RICHARD A. POSNER, THEPROBLEMS OF JURISPRUDENCE 283-285 (1989), and CASS R.SUNSTEIN, AFTER THE RIGHTS REVOLUTION 201-205 (1990), bothcriticised in EPSTEIN, supra note 1, at 401-405.4. For my views, see Richard A. Epstein, Forward:Unconstitutional Conditions, State Power and the Limits of Consent,102 HARV. L. REv. 4 (1988).

Spring 1992


Coming in the Next Issue

The Kansas Journal of Law & Public Policy 1992 Symposium:

America's Education Policy for the 21st Century: A Race Between Learningand Catastrophe.

Featuring

Race and the Future of American Education

Arthur A. Benson II, Integrating Public Education : Good Law and Good Social Policy

Lino Graglia, The Busing Disaster

Rachel F. Moran, Getting a Foot in the Door: The Hispanic Push for Equal EducationalOpportunity in Denver

Marilyn Yarbrough, School Choice and Racial Balance: Silver Bullet or Poison Dart?

Reform and the Future of American Education

Richard W. Campbell & Lawrence R. Hepburn, Educational Choice: Is it Really a"Panacea"for What Ails American Schools?

Jacob U. Gordon, Key Public Policy Issues in African American Education

Sally N. McConnell, America 2000: New Direction or Misdirection?

Bumele Venable Powell, "Truth" or Consequences: The Obligation for Legal Education toAct Affirmatively

Laura F. Rothstein, Policy Issues in Special Education

University of Chicago Law SchoolChicago Unbound1992Affirmative Action in Law Schools: The Uneasy TruceRichard A. EpsteinRecommended Citation

affirmative action in law schools- the uneasy truce

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