Not All Black and White: Affirmative Action and American Values.

IN 1995, HARVARD LAW PROFESSOR Christopher Edley Jr. received what he calls "the chance of a lifetime" when he was asked to head President Clinton's formal review of affirmative action policies. After several tumultuous months, Edley's review concluded that affirmative action policies should be "mended, not ended." This was a politically brilliant slogan, capturing America's ambivalence over racial and gender preference policies: the desire to address inequalities, paired with the deep concern about biological preferences as the means. Many observers noted, however, that the slogan hardly translated into the fine print of the President's program, which seemed devoid of visible "mending."

Edley has now come forward with a thoughtful, thorough, well-written book combining sharp analysis of the difficult questions raised by affirmative action with behind-the-scenes tales of the White House struggle with the issue. Those familiar with Edley's teaching will not be surprised that the book presents a strong, comprehensive case for his position, but also acknowledges the tough counterarguments made by opponents of current programs.

Having said all this, I doubt Not an Black and White will win over many new converts. Despite the fact that one of Edley's most important contributions to the debate is his insistence that affirmative action involves a question of values, not just interests, his book ultimately endorses almost every form of racial preference--a position that contradicts some of the fundamental values Americans hold dear.

Edley lays out three different visions in the affirmative action debate: the colorblind vision, which repudiates both discrimination and preferences; the remedial vision, in which affirmative action is a temporary remedy to discrimination; and the diversity vision, in which affirmative action is used to foster inclusiveness, even in the absence of discrimination.

The first vision, colorblindness, calls for nothing beyond strict enforcement of antidiscrimination laws. Edley argues that this thinking is willfully ignorant of social realities. He notes that we live in a society in which black unemployment is two times that of whites, where 1 of every 2 black children under the age of six lives in poverty (compared to 1 in 7 white children); and where only 2.4 percent of businesses nationwide are owned by blacks. Even absent future discrimination, this condition will be perpetuated into the future, says Edley, given the low levels of social mobility for people of all races.

While conceding that racial preferences have "moral costs," Edley rejects colorblind law. He further argues that the conservative use of Dr. Martin Luther King's admonition to judge people by the "content of their character" rather than the color of their skin is "a grotesque distortion of his message" and "sadly manipulative." Edley writes, "King spoke approvingly of race-conscious affirmative action," then cites the passage from Why We Can't Wait where King says: "It is impossible to create a formula for the future which does not take into account that our society has been doing something special against the Negro for hundreds of years." Checkmate.

Except that it's not. In the very book where King appears to be making a case for racial preference, he ultimately rejects a special Bill of Rights for the Negro in favor of a Bill of Rights for the Disadvantaged. Rather than discarding the colorblind principle for which he had fought so long, King saw that we could implicitly address a history that had left blacks disproportionately poor by advocating policies for the disadvantaged. King saw it as a "matter of simple justice" that poor whites be helped too; he also saw that, as a matter of politics, poor and working-class whites would never accept a program that gave wealthy blacks preference over poor whites.

Rather than follow King's vision of merging colorblindness with a needs-based remediation, Edley outlines a vision that pays limited homage to the colorblind principle--saying no to quotas--but allows race to be used as a plus factor in decision making Rejecting the sterile "equal opportunity" of conservatives, Edley calls for "morally equal opportunity" He explains: "All Americans should have, so far as is possible, a full and equal chance to develop their talents and use them for the betterment of themselves, their families, and their society" Edley claims racial preferences are needed to create this condition, citing Lyndon Johnson's famous 1965 Howard University speech: "Men and women of all races are born with the same range of abilities. But ability is not just the product of birth. Ability is stretched or stunted by the family you live with . . . the neighborhood . . . the school . . . and the poverty or richness of your surroundings."

Surely Edley is correct in saying that antidiscrimination laws are necessary, but not sufficient, for morally equal opportunity. But his line of argument--that children residing in dangerous neighborhoods, going to lousy schools, and living in poverty-stricken families need a leg up--justifies intervention based on need, not race.

Edley answers this obvious objection with his third vision of affirmative action: "remediation plus inclusion" Our goal is not to provide just equal opportunity, he says, but some sort of racial representation in our institutions--inclusion and diversity being measured by results, not the fairness of the selection process. In illustrating this justification for affirmative action, Edley recounts a White House discussion in which he told the President: "[D]uring the transition you said you wanted a cabinet that `looks like America.' Well, did you appoint Ron Brown Secretary of Commerce or Hazel O'Leary Secretary of Energy because you wanted to provide a remedy for discrimination they had suffered or discrimination practiced by past Presidents in filling cabinet posts?" No, Edley argues, Clinton included these individuals because they represented America's diversity and the differing experiences and viewpoints associated with race and ethnicity.

But by Edley's count, there were five African Americans, two Hispanics, and 12 whites in the original cabinet, which means blacks were overrepresented by 100 percent. In point of fact, Clinton's cabinet looked not like America, but like the Democratic electorate. To paraphrase Edley: Was this because Clinton was interested in having the peculiarly African American perspective on export promotion and nuclear waste? No, it suggests he was rewarding political constituencies--as presidents have always done. But to dress up patronage as a quest for view point diversity is to cheapen that worthy goal.

Still if diversity in the cabinet is a matter of politics, aren't there areas where diversity is important on its own merits? According to Edley, there is widespread agreement among liberals and conservatives in favor of what he calls "the easy case of a police department struggling to serve a diverse and divided city" Edley suggests: "Forget about any history of employment discrimination, or any risk for it in the future. There is an independent justification for affirmative action based on the reasonable belief that inclusion will make the organization better as a police department" Empirically, it is reasonable to conclude that inner-city blacks are more likely to be trusting of black officers, so there is reason to seek diversity even in the absence of discrimination. But I think Edley is wrong to call it an "easy" case. There is a serious question about whether our public policy should encourage and sanctify stereotypes (this one being that white cops treat blacks unfairly). One white police officer in California told me that when he tries to befriend black children on his beat, he often hears their mothers tell them to stay away from him. Do we want a public policy that ratifies such racialism?

Among the most troubling aspects of the diversity vision is its breadth and scope. Whereas the remedial vision is limited to institutions that have discriminated and is meant to serve as a temporary bridge to colorblindness, diversity envisions a permanent race-consciousness throughout society. By endorsing inclusiveness as a broad justification for racial preferences, Edley runs against his book's generally moderate grain.

We can all agree that diversity is a good thing and an important thing, but has it really risen to the level where it trumps justice? The key flaw in the push of university administrators for racially diverse student bodies is the disregard for the justice of the means employed. To declare that we will seek a racially diverse class--and fairness be damned--breeds the very resentment and separatism that diversity is meant to counteract.

To his credit, Edley repeatedly acknowledges the difficult issues raised by affirmative action (hence the book's title). But in the end, he, like Clinton, invariably sides with the programs' proponents. In his discussion of several controversial cases, he cannot bring himself to explicitly oppose any of the programs--whether it be the use of blacks-only scholarships at the University of Maryland (successfully challenged by a Hispanic student), or the use of race in determining layoffs by the Piscatway, N.J., school board (also overturned by the courts). At one point in Chapter 7, he lays out a matrix of 12 hypothetical uses of affirmative action, ranging from the easily defensible to the problematic. He then concludes that "all of them offer substantial benefits that justify both public and private race-conscious affirmative action" Yes, Edley opposes race norming and quotas (both already illegal), but he supports the kind of preferences that even liberals like William Brennan and Harry Blackmun have acknowledged can have very nearly the same effect.

Clearly outlining the various tensions surrounding the debate, Not All Black and White succeeds in its effort to show affirmative action as a complex issue with strong arguments on both sides. Ironically, it is Edley's very success in showing the issue to be complex that makes his unwillingness to suggest meaningful alterations all the more troubling.

RICHARD D. KAHLENBERG, a Fellow at the Center for National Policy, is author of The Remedy: Class, Race, and Affirmative Action.