HOUSE_OVERSIGHT_017386.jpg

4.2.12
WC: 191694

The issues raised by the Delphic decision in Bakke continue to challenge the courts and the
constitution. As I write these words, the Supreme Court has agreed to review yet another
affirmative action program. The issues may be similar to that raised in Bakke and subsequent
cases, but the personnel on the court has changed. Stay tuned.

My principled opposition to race-based decision making has been softened somewhat by
experience. I have seen it work in practice. First and foremost, it has helped produce a new
generation of remarkable Black leaders, many of whom were my students and remain my friends
and colleagues. This has changed the face of America – and the world. Second, it did not have
the feared negative impact on the admission of Jewish students. Jewish leaders were
appropriately concerned that the “Black places” would be taken from the hard-earned “Jewish
places,” because colleges like Harvard and Yale would never reduce the number of White Anglo
Saxon Protestants, who were the “backbone” and the “heritage” of these schools. Well, that
turned out to be wrong. There has been a significant decrease in the number of “WASPs”
admitted to elite schools. The “donuts”, it turns out, have not only been “bagels;” they have
included white bread. Put another way, Jews have become WASPs, when it comes to admissions.
Many Jewish applicants are now “legacies” who are given an advantage in admission. It may still
be a bit more difficult, all things being equal, for a Jewish non-legacy applicant to be admitted,
because all colleges seek “diversity”, but the number of Jewish admittees remains high. So it has
been a win-win, rather than a zero sum game, at least as far as Blacks and Jews are concerned.
There may still be implicit ceilings for some Asian applicants to some schools, but that may be
because there are so many qualified Asian-American applicants as well as applicants from many
Asian countries. The donuts therefore include “nan” and dim sum.

My philosophy of life has always been that experience is the primary source of our morality – that
rights come from wrongs. Rights also come from a recognition that they may not produce the
wrongs that are feared. It should not be surprising therefore that based on experience I have
changed my views somewhat on the propriety of race-based decisions. It would also not be
surprising if, in the future, I changed my views again, as many African-Americans secure greater
power, influence, and privilege in America. It may become necessary at that point – a point we
may not have reached– to base affirmative action programs more on class and other relevant
factors than on race alone.

In sum, therefore, my views regarding equality have not changed over the years, since equality is a
principle and in my view an enduring and never changing goal. The means by which we seek to
achieve the goal of equality will vary over time and place with experience. The ongoing
experiment with various types of affirmative action programs will never provide a perfect solution
to an extraordinary complex problem, but I believe we are moving in the right direction.

299

HOUSE_OVERSIGHT_017386