by James P. Sterba. Ithaca: Cornell University Press, 2009. 144pp. $49.95 Cloth. ISBN: 9780801446078. Paper $17.95. ISBN: 9780801475917.Reviewed by Martin J. Sweet, Assistant Professor of Political Science, Honors College, Florida Atlantic University. Email: msweet4 [at] fau.edu.
pp.38-41
It has been about 15 years since Daniel Farber called the debate over affirmative action “outmoded” (Farber, 1994). Farber and other scholars claimed that the academic rhetoric had become “a bitter stalemate,” “boring” “hypocritical,” “intractable,” “caustic and draining,” and a “ridiculous misallocation of scarce [academic] resources.” Yet there have been two rather large developments in the field in the intervening years. First, a series of academics have undertaken empirical research projects evaluating the efficacy of programs. A group of economists and political scientists quietly amassed a rather large catalogue of evaluations, largely, but not exclusively, pessimistic about the efficacy of the policy. The popular book THE SHAPE OF THE RIVER similarly, albeit with some rather open questions about methodology, ventured down the empirical path and took a more sanguine view of the results (Bowen and Bok, 1998). Second, the United States Supreme Court, for the first time since the KOREMATSU v. U.S. (1944) decision upheld a race-based facial classification scheme under the guise of strict scrutiny, in GRUTTER v. BOLLINGER (2003). The Supreme Court ruled in both GRUTTER and GRATZ v. BOLLINGER (2003), that diversity provided public universities a compelling state interest in creating affirmative action programs. Of course, the undergraduate admissions scheme at issue in GRATZ violated the Equal Protection Clause of the 14th Amendment, but the Court upheld the law school admissions program in GRUTTER. James Sterba combines these two developments and offers a spirited empirical minded defense of affirmative action and advocacy of the use of diversity as a justification for affirmative action. He does more than that, of course, as I detail below – but the really “new” contribution Sterba makes here is an academic defense of diversity to justify affirmative action.
Sterba’s advocacy of affirmative action is grounded in a long litany of economic and social indicators that find African Americans (and often Hispanics) less well off than white (and non-Hispanic) counterparts. In chapter 1 entitled “Current Racial and Sexual Discrimination,” he presents statistics on infant mortality, loan rejection rates, earning power, and environmental inequities that all point toward extant differences between individuals based on race. Sterba similarly argues that women are behind their male counterparts on a bevy of additional economic and social measures. Given his chapter title, it is not surprising that to Sterba this is all “considerable evidence of existing racial and sexual discrimination” (p. 14).Yet what must be noted about Sterba’s evidence, and of which he admits, is that it is almost exactly the same type of [*39] evidence of “societal discrimination” that has been routinely rejected by the courts. It is certainly bothersome to those for whom equality is an important issue that all of these statistics point in a similar direction. Yet Sterba does not undertake a systematic look at black and white outcomes. Is it really true that there are no cases where there is no statistical difference between similarly situated black and white individuals? Surprisingly, given the focus of the overall argument, Sterba fails to present statistics related to diversity and education. How does environmental racism matter for obtaining a critical mass of black students in the classroom so as to provide for a non-monolithic minority point of view?
Chapter Two provides a legal history of affirmative action, noting the prominent legislative and judicial efforts within the affirmative action narrative. Sterba’s argument about diversity depends, in large part, on not only the legitimacy, but the grandiose importance of the Supreme Court’s case in GRUTTER. GRUTTER to most legal observers was certainly a monumental case – having a race-based program upheld under the aegis of the Supreme Court while using strict scrutiny was exceptionally noteworthy. But one has to wonder just how important a case GRUTTER really is. This is an issue for all of us when studying judicial decisions, but especially here, where Justice O’Connor was the sole Justice to be in the majority in both 5-4 University of Michigan cases. Now that Justice Alito has replaced Justice O’Connor on the Court, there is some serious doubt of the continuing viability of the decision. Consider how the Supreme Court refused to apply GRUTTER in the education assignment cases, PARENTS INVOLVED IN COMMUNITY v. SEATTLE SCHOOL DISTRICT (2007). Sterba notes this issue, but it should have given him more pause. Sterba attempts to liken the education assignment cases to BAKKE (1978) – as plurality decisions with Kennedy, instead of Powell, as the swing vote. But what has to be noted is that now Kennedy, and not O’Connor, is the most left leaning of the conservative Justices – and Kennedy ruled against both of the University of Michigan programs. In short, it seems plausible that stare decisis could matter, but it is much more likely that GRUTTER is the new METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990) – a case awaiting the proper vehicle to overturn it – rather than actually representing a sea change in how the judicial branch treats affirmative action.
In Chapter Three, Sterba strives to derive a neutral definition of affirmative action, one that will not easily sway discussions of the subject into partisan rancor. Sterba settles on “a policy of favoring qualified women, minority, or economically disadvantaged candidates respectively with the immediate goals of outreach, remedying discrimination, or achieving diversity, and the ultimate goals of attaining a colorblind (racially just), a gender-free (sexually just), and equal opportunity (economically just) society.” (p. 32). This seems like a fair description of what he defends throughout the book, and he should be commended for putting forth an honest description of his favored policy. Yet readers will quickly determine that there is a not a per se research question in the book. This is an advocacy book from [*40] start to finish, and thus the neutral terminology seems slightly incongruent with the rest of the book.
Chapters Four, Five, and Six discuss outreach affirmative action and remedial affirmative action. Sterba laments that the Court in CITY OF RICHMOND v. CROSON (1989) read the 14th Amendment to impose such an onerous standard for governments to identify discriminatory systems before instituting remedial programs. He also argues that the Court should treat “benign” and “invidious” discrimination differently, in contrast to the Court’s rulings in CROSON and ADARAND v. PEÑA (1995). To his credit, Sterba also directly addresses five different criticisms of remedial affirmative action programs. But scholars will not find much new throughout this section of the book.
Chapters Seven and Eight advocate and defend diversity affirmative action. Largely, however, Sterba relies on GRUTTER for supplying the rationale for diversity, including quotes from the amici briefs. In a parenthetical, he suggests, without elaboration, that it takes between three and five minority students in a class of 30 to “contribute to class dialogue without feeling isolated” (p. 71). Given the set-up of the book, discussing “conditionality” (empirical evaluations of affirmative action), it was disappointing not to receive more here. Can any three black qualified students supply this added value to class dialogue, or are there certain types of black students needed? What types? Must there be special limitations on the other students in the class so that they too contribute to this class dialogue? Might we have to guard against admitting too many homogenous majority applicants? And if so, considering the very real situation of rolling admissions, who gets admitted and declined first? Are students then forced to register for particular classes? All too often Sterba mistakes the noble sounding idea of diversity with how these policies might actually play out. For example, in making his point about the value of diversity, he slips into some misleading anecdotes. Sterba points out that his “fast-talking chain-smoking New Yorker” partner, and a single minority student who recounted what was likely a hate crime in front of the class, had “significant educational benefits” for colleges and universities. (p. 72). Having a single professor or student different from the rest of the class, is entirely unrelated to the concept of “critical mass” at play in GRUTTER. Throughout these chapters, Sterba does skillfully take on affirmative action critics and some anticipated problems with his argument. Certainly in the micro-sense, he is quite strong and adept at finding fault with his critics.
What is most lacking in this book is, ironically, perspective of the other. Instead of being gracious toward those with whom he might disagree, Sterba comes across as snide and condescending. Rather than take on one who might suggest that it is simply always wrong for the government to provide racial preferences, he derides “No one in their right mind thinks that racial preferences are always legitimate or always illegitimate” (p. 76). And rather than engage with the literature about the actual outcomes of diversity (see Putnam, 2007), he suggests that if the statistics he provides about the need for affirmative action do not move us, we “[are] unconcerned . . . about [*41] widespread existing discrimination” (p. 102), “do not call for . . . the federal government to prosecute . . . discrimination” (p. 102), “[are not] interested in overturning [bad] Supreme Court decisions”(p. 102), and “are unsupportive] of the large increases in spending that are needed to provide all students in the United States with at least a K through 12 quality education” (p. 102). Much of the book has a tone that one might hear at a dinner party where all “good people” surely think “the right way.”
This book will certainly appeal to those who simply want to read that affirmative action will move us toward racial equality. If one wants scholarly investigation into how affirmative action might look in the future, and empirical information that defends and advocates for diversity affirmative action, Sterba has fallen short.
REFERENCES:
Bowen, William G. and Derek Bok. 2000. THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS. Princeton, NJ: Princeton University Press.
Farber, Daniel A. 1994. “The Outmoded Debate Over Affirmative Action.” CALIFORNIA LAW REVIEW 82:893-934.
Putnam, Robert D. 2007. “E Pluribus Unum: Diversity and Community in the Twenty-first Century – The 2006 Johan Skytte Prize.” SCANDINAVIAN POLITICAL STUDIES 30(2) 137-174.
CASE REFERENCES:
ADARAND v. PEÑA, 515 U.S. 2000 (1995).
CITY OF RICHMOND v. CROSON, 488 U.S. 469 (1989).
GRATZ v. BOLLINGER, 539 U.S. 244 (2003).
GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).
METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).
PARENTS INVOLVED IN COMMUNITY SCHOOLS v. SEATTLE SCHOOL DISTRICT NO. 1, 551 U.S. 701 (2007).
REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).
© Copyright 2010 by the author, Martin J. Sweet.
