The magic formula for affirmation action turns out to be more elusive than
Fermat’s Last Theorem. This frustration makes the extreme positions more
seductive. Loyalists retrench and claim that affirmative action is always
necessary to make sure blacks aren’t denied their due. Skeptics surrender
and conclude that affirmative action is nothing more than simple reverse
discrimination that actually denies whites their due.

These extremes seduce us because they rest upon a basic logical truth: that
whenever a black candidate gets preference (for a job, for a promotion, for
a slot in a class) because of race, then a white candidate is denied
preference because of race. With a wave of the hand, this cold equation
seems to dismiss efforts to devise a middle-ground recipe. Presumably, we
want to face up to the logical truth that preferences affect those who lose
out as well as those who benefit. That means we have to honor the claims of
the losers as well as those of the beneficiaries.

Yet presumably we also want to see more than lip service paid to racial
iniquities; the ideal goal remains eradicating the shameful gaps in the
living conditions, educational opportunities and earning power between
blacks and whites. That means we’re going to have to live with affirmative
action. And for the long run. Many people believed or promised that
affirmative action would need only one generation to succeed: idealist
Civil Rights movement liberals suspected utopia lay within reach;
clench-jawed conservatives swallowed hard and tolerated the policy for only
a limited time. But both groups were deluding themselves. John Jeffries,
biographer of Supreme Court Justice Lewis Powell, writes of a closed-door
Supreme Court conference, in which Thurgood Marshall told Powell that
preferences would need 100 years to make society equal. Powell balked, but
Marshall was right. Affirmative action would be no quick fix.

By “living with affirmative action,” I don’t mean forcing regular doses of
the bitter medicine down the throats of its opponents. Nor do I mean
throwing up our hands and tolerating it as a necessary evil that we
reassure ourselves is temporary. I mean treating affirmative action for
what it is and must be: a constantly resurfacing question that bobs in and
out of lives. In each and every instance we must apply it anew. Sometimes
we’ll deem a racial preference to be justified and just; other times, we’ll
deem it excessive, unwarranted. Painful though it may be, we’ll have to
administer it on a case-by-case basis, without recourse to any magic
formula of legal rules or numerical qualifications. The solution to
affirmative action, it turns out, is that there is no solution.

In a political climate where the more alarmist and reductionist the
prescription, the greater its currency, this ad hoc answer is bound to
disappoint. Even if it’s intellectually satisfying, it’s hardly politically
resonant. Defenders of affirmative action, doubtless, will balk. Groups
such as the NAACP have made affirmative action a staple of fundraising
pitches and have enshrined it as a cherished ideal. Democratic politicians
rely on it to court the black and liberal vote. Resorting to a case-by-case
solution may fail to generate the enthusiasm of a crusade that these groups
feel they need.

But these are precisely the groups that are now losing the affirmative
action battle. The burden is on them to change. Rhetorically, affirmative
action supporters have to acknowledge, openly and unequivocally, the abuses
and failures of many preference programs. What’s more, they should work to
stop them, even if that means throwing in their lot at times with some
unseemly sorts. Earning credibility means showing you can distinguish
between the fair and the unfair, the warranted and the unwarranted. Only if
the practice of affirmative action is rid of its unjust applications will
the moral case for its just application be made plain. Yes, the
defenders of the cause will lose a favorite rallying-cry; but the sad fact
is that it was a cry of ambiguous value to begin with. Besides, with the
Republican Congress ramming its agenda forward, there will surely be plenty
of other causes — of unassailable political and moral worth — with which
they can mobilize the troops.

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