NEAL CONAN, host:

This is Talk of the Nation. I'm Neal Conan in Washington. In an effort readdress the legacy of slavery, racism, and sexism, the federal government and many states established affirmative action programs that gave minorities and women preference in hiring, education, and contracting.

Affirmative action was controversial and emotional from the start and remains a hot-button issue today. After all these years, the debate is familiar. Proponents report to the fact that poverty and discrimination continue to affect minorities and women in disproportional numbers. Opponents argue that it's simply not right for the government to discriminate on the basis of race and sex, and some say now that the election of an African-American president shows we don't need to anymore.

Later in the program, many mark this Martin Luther King Day as a national day of service. We want to hear what you're doing today. You can email us now, talk@npr.org, but first, the future of affirmative action. We want to hear about your personal experience with affirmative action. Our phone number is 800-989-8255. Email us, talk@npr.org, and you could join the conversation at our Web site, that's at npr.org, just click on Talk of the Nation.

We begin with Dahlia Lithwick, senior editor at slate.com. Her article regarding Barack Obama's record on affirmative action, "A Complicated Record on Race," appeared in Newsweek magazine in April. She's a regular contributor to NPR's Day to Day and joins us today from the studio at the University of Virginia. Nice to have you back on the program.

Ms. DAHLIA LITHWICK (Senior Editor, Slate.com): Thank you for having me, Neal.

CONAN: And where does affirmative action stand as we enter Barack Obama's presidency? Where is it applied?

Ms. LITHWICK: Well, it's applied generally by the federal government in education and employment. That's been the case for years and years now. Certain employers need to file these AAPs, affirmative action plans, and that means that they have to have, if they meet certain criteria - if they're non-construction employers with at least 50 employees and U.S. government contracts worth at least $50,000, they need to have an AAP. Depository of any amount of government funds needs an AAP, an issuing and paying agent of U.S. government bonds, and so on.

So there are certain entities - employers that have to have these plans and then certain universities. And I think, as you mentioned in your introduction, this becomes a very fraught proposition because several states over the last couple of years and a real backlash against affirmative action that started in the state of California have actually done the opposite and have gone ahead and said, you cannot take race into account in education and employment.

And so you have states like California, Michigan, the state of Washington, and most recently the state of Nebraska, that via ballot initiative, citizen ballot initiative, have done away with affirmative action. So you have a sort of push me, pull you dynamic where it's the law in some places, and then in some states, it's explicitly not the law.

CONAN: And we'll get to those distinctions in just a moment, but the most recent Supreme Court decision, this case involved the University of Michigan Law School where they said, this still needs to be applied, at least for a while. Is that a fair summation?

Ms. LITHWICK: It is. Talk about, push me, pull you. That was such an interesting case. This was a 2003 case in which the Supreme Court looked at two different programs at the University of Michigan (unintelligible) validated saying, this is a program that allows points, specific points for race and gender, and so it's impermissible. It looks enough like a quota, says Justice Sandra Day O'Connor at that time. This is impermissible because it really looks like a quota system. That's not allowed.

On the same day, they go ahead and uphold the University of Michigan's law school affirmative action program because it's fuzzier. It sort of just takes race into account. It's one of many factors. It's much blurrier, and so, as you say, it's this very fraught proposition right now, where you can do it as long as you don't explicitly do it, as long as you don't put a number on it, as long as it's just kind of a thumb on the scale in favor of race. Then it's OK. And that's the law of the land after 2003.

CONAN: And now, as we look at the states like California, where it has been prohibited, that you can - you must be colorblind in university applications, for example, how has it affected minority standing at the University of California, for example?

Ms. LITHWICK: It's been extraordinary, Neal. I mean, the numbers, the plummeting of minority attendance at schools in California has been really hard to dispute. The number I'm looking at right now says that UC Berkeley saw a 61-percent decline in admissions of African-Americans, Latinos, Native-Americans. UCLA had a 36-percent decline.

I just want to add for clarity, that's been really the case at the flagship schools in California. So the UC system in general certainly has significant numbers of minority students, but at UC Davis, UCLA, they're seeing dramatic, dramatic drops in minority student enrollment.

CONAN: And how does this policy fare politically? Is it popular with the American public? Can you run against affirmative action and get elected?

Ms. LITHWICK: Well, it's - part of what is really fascinating is what happened on November 4th, where there were ballot initiatives that were defeated in some places and that overwhelmingly won in other places. So, for instance, a ballot initiative did just fine in Nebraska to do away with affirmative action. The one in Colorado went down.

One of the things that's so interesting - and I'm glad you asked the question about politically - is that it absolutely has to do with how you frame the question. And one of the things that's been very, very controversial about the ballot initiatives, particularly the one in Michigan that was passed in the wake of the University of Michigan cases, is that the way you word it on the ballot has everything to do with what the public determines that they want or don't want.

These ballot initiatives often do not include the words affirmative actions. They have very vague sounding referendum questions about, people shouldn't be discriminated on the basis of race, which I'm for that, so you get this very widespread support for an initiative that sounds like that. I think the American people actually like affirmative action more than some of these referenda reflect, and that is - again, has to do with the politics of how you word the question.

CONAN: And then we get to now President-elect Obama's stand on this, and though he was at Harvard Law School at a time when that was, you know, it was a pretty hot issue, though he taught Constitutional law at the University of Chicago, including courses that included the discussion of the law and race, he's pretty fuzzy on this issue.

Ms. LITHWICK: (Laughing) Fuzzy is one way to characterize it. You know, a lot of his fans characterize him as post-race, and so what they say is, this isn't fuzziness. What this is is a broader vision, a grander scope, an ability to see past this very narrow crab definition of giving points to people simply because they're black or white and is much more interested in a broader, more nuanced view.

But I think I can agree to call it fuzzy. I think that one of the things that was very interesting in researching the Newsweek piece you talked about from last spring was that virtually everybody I talked about, whether they were for or against Obama, said, this is just not something he obsesses about. He doesn't think of race in these very singular terms.

And that even in Harvard, as you said, in the 1990s, and Harvard was really a hotbed of dispute, that the faculty was tearing each other's heads off, the law review was collapsing all around these issues of minority representation. He just didn't really engage.

He was thinking in different terms even at the time. He was thinking about poverty-based affirmative action. He was thinking about different ways to even the racial scales. And so it seems to me this is not a tool that's by any definition at the top of his tool box.

CONAN: And then there's an oft-quoted statement in an interview on - I think it was ABC television, in which he said, how - asked how his daughters should be treated, he said they should be treated as people who were pretty privilege. And, in fact, he said, we have to take into account that there are an awful lot of white people who come from disadvantage backgrounds, too, suggesting to some people that he might be arguing for affirmative action on the basis of class rather than race.

Ms. LITHWICK: I think that's right, and a lot of affirmative action opponents took that as Obama clearly telegraphing a symbol that he was moving away from color-based affirmative action or race-based affirmative action toward something different, something that a lot of people, including a lot of, I think, progressive proponents of affirmative action have been moving toward in the last couple of years, which is this notion that we can affect many of the same results we want in America by looking not at the color of your skin, but by looking at your income and where you came from economically.

It's not clear that's what he was saying. Certainly a lot of opponents of affirmative action, including Ward Connerly, who has sponsored many of these state ballot initiatives we've talked about, took it as a very clear symbol that that's where Obama was going with it.

CONAN: We're talking with Dahlia Lithwick about the future of affirmative action. If you'd like to join us, 800-989-8255. Email us at talk@npr.org. What has been your personal experience with this issue over the last many years? Let's start with Chris, Chris with us from Tucson, Arizona.

CHRIS (Caller): Hi there.

CONAN: Hi.

CHRIS: What I wanted to say was simply, there are a lot of environments where the quantitative measure of your performance I think mitigates against needing affirmative action, but if you're in environments where there's a qualitative assessment, it's more important to have a discussion about whether or not you're adequately representing all the individuals who, you know, are in front of you.

My personal experience has been in the academic environment, and in that environment, I saw a - well, I was a graduate student. I saw a female professor turned down because she was a female. It was a very interesting vote. There were 30 sitting males, and of the 30 sitting males, 16 of them refused to vote on her because she was female.

More recently, I've applied for a job, and my name is actually hyphenated, so you can't tell my gender. And I wasn't actually looked at for this job. I do security studies. And when I found - I inquired later why was I, you know, not looked at. And what they said, well, it's because we were looking for a woman. Oh my God, you are a woman. We didn't realize that.

(Soundbite of laughter)

CONAN: Which realizes these ironies, Dahlia Lithwick. This happens all the time.

CHRIS: Yes, exactly, and I think one of the things that we have to keep in mind is - and I have to agree with the person who just spoke that it is how you cast it. It's not what you - what you label it, but how you characterize it.

I also had a colleague who was a ROTC commander a couple of years ago say that he was - this is before the war - this was approximately '99, something like that - and he said he's having trouble filling all of his slots on the local university for ROTC. He said, but if they would lift the limit on 15 percent females, I'd fill them in a heart beat, and I'd have better candidates.

CONAN: Mm hmm.

CHRIS: And so, for his worldview, it had nothing to do with male-females. It had everything to do with just deciding that you could pick the best candidate, and he had measures of performance that allowed him to do that. So, if you...

CONAN: Well, Chris...

CHRIS: Cast it in the right way, I think people are more likely to support it.

CONAN: Chris, thanks very much for the call. Appreciate it. And, Dahlia Lithwick, thank you very much for your time today.

Ms. LITHWICK: My pleasure.

CONAN: Dahlia Lithwick, senior editor at slate.com, a contributor to Newsweek magazine and to NPR's Day to Day. When we come back, we'll talk with two others about their experiences with affirmative action and its future. Talk of the Nation, NPR news.

(Soundbite of music)

CONAN: This is Talk of the Nation. I'm Neal Conan in Washington. The debate over affirmative action in the U.S. goes back some four decades. Today, as an African-American gets set to take the oath of office as president, we're talking about the future of affirmative action programs, and we're going to hear opinions of both sides of the debate.

We want to hear about your personal experience with affirmative action. Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our Web site. That's at npr.org, just click on Talk of the Nation.

And joining us now from member station WUOM in Ann Arbor, Michigan is Shanta Driver, she's chairperson and national spokesperson for By Any Means Necessary, a coalition that supports affirmative action. Nice to have you with us today.

Ms. SHANTA DRIVER (Chairperson and National Spokesperson, By Any Means Necessary): Thank you.

CONAN: And it's Shanta, I apologize for mispronouncing the name.

Ms. DRIVER: Oh, that's OK.

CONAN: And joining us also now from our bureau in New York is John McWhorter, a senior fellow at the Manhattan Institute who's written extensively on race relations and education. And, John - I can pronounce that - nice to have you back on the program.

Mr. JOHN MCWHORTER (Senior Fellow, Manhattan Institute): Hi, Neal. Good to talk to you.

CONAN: And, Shanta, let's begin with you. Why after the election of an African-American as president do we need to continue affirmative action?

Ms. DRIVER: I think affirmative action programs are necessary to create any real opportunities for integration and equality in this society. We've seen in higher education that when those programs get eliminated, when there has been state bans on affirmative action, that there's been the re-segregation of higher education, in particular at the professional-school level, but also at some of the more elite or, you know, top-ranked universities, public universities in those states.

To us, affirmative action programs were created to desegregate higher education, to provide black and Latino students and women of all races with the opportunity to become anything that they want to be, and when you have affirmative action programs eliminated, you see that hope, that opportunity drop down.

CONAN: John McWhorter, you can you look at those numbers in places like the University of California, their lead institutions, and say, whoa, this is a big change.

Mr. MCWHORTER: Well, yeah. And, of course, there were those drops, and it should be mentioned that after the initial plummeting, that the numbers of students then climbed in subsequent years as all sorts of things were done to have ways of bringing qualified minority students to campus other than the quota systems, if we can call it that, that have existed before.

But in terms of what we're talking about here, the question that I have is whether it's really such a tragedy if, for example, a black student in California gets a degree from the University of California at San Diego, which is a fine school, rather than Berkeley as that same student might have 10 years ago.

And it seems that if we suppose that the fact that there aren't as many black students at Berkeley as there were 10 years ago and before is such a complete desegregation, then we have to ask what exactly is the proper number, and in what way are we ruining the lives or lessening the quality of the lives of students who under the new kind of regime that you have, for example, in California are nevertheless able to get excellent higher educations.

And so, the issue is at what cost, and I don't want to go on too long about this, but I think that really, as far as racial preference policies in universities go, we have to ask, what are we talking about in terms of diversity, and what are the benefits of it. And there are a great many studies that show that really, there's no documented benefit to diversity.

And I think that we should definitely keep affirmative action as we go on, but it should be based on class. It should be based on disadvantage. The idea of supposing that having brown skin and disadvantage are essentially the same thing is obsolete and to go around it by saying that what we're interested in is diversity is something that doesn't get defended as much as just announced. And I'm not sure that really most diverse students particularly enjoy being diverse at university. So it's just something that needs to be talked about more clearly than it often is.

CONAN: Shanta Driver, would you support affirmative action based on class?

Ms. DRIVER: Well, first of all, yes, absolutely, but affirmative action programs based on class have been being used at the University of California. They are being used at the University of Michigan, where I'm at today, and the numbers of black and Latino students have still dropped off.

The fact of the matter is that there are certain opportunities in this society that are structured based on race. Racism exist. It is something separate and apart and different from questions of class. There's an intersection between the two, but they're not the same thing.

And I just would just very much disagree with Mr. McWhorter. I think the cost to the state of California with the loss of affirmative action programs has been enormous. To be in the state that now has the majority of its high-school graduates be minority students and to have a UCLA where a couple of years ago they were only 100 black students in an entering class of more than 5,000, where there was a tiny, tiny proportion of Latino students at that university, and let's be honest. It obviously made a difference for Barack Obama to have been able to go to Harvard, and without affirmative action programs, he wouldn't have been able to go there.

For the young people of California, for black and Latino students who aspire to be leaders of that state to be kept out of the Berkeleys and the UCLAs, excluded from those public universities means that they never make the kind of contacts that you would need to make. They never have the opportunity to test themselves out against many, many people who see themselves as being future leaders of this nation.

They never have the opportunity to be able to get the same kind of education as lots and lots and lots of white students at those universities who are there purely because their parents went there, and their grandparents went there, and their legacy admits, as George Bush was, at Yale, who are clearly not qualified to be at those elite institutions, but are there and gain opportunity from it.

CONAN: And I want to give John McWhorter a quick, brief chance to reply, and then we've got to get some calls on the air. And we - again, we want personal experiences with affirmative action. John McWhorter?

Mr. MCWHORTER: Well, quickly, number one, it's interesting, if you look at successful black people over the past 50 years or even the past 30 or 20 and notice how very few of them happened to have ivy-league educations or anything similar, I think that's often said, but it's not been demonstrated at all.

And I think that we also have to consider that if what we're talking about is admitting black and Latino students with significantly lower grades and test scores because that's what many of these programs, including the one in Michigan and the ones in California, were doing - that's something that we tend talk around - if we're going to do that, then we have to talk about what the effect of that it. And when you have that two tier system, and I was teaching at Berkeley and saw it, you see people not graduating in disproportionate numbers.

Or since I don't have much time, I'll just put this one out there. Famous statement among black students on selective college campuses, all the white students think that I'm here because of affirmative action. Well, the fact of the matter is that, if most of the black students on campus are one, possible solution would be to not have a policy that would, for example, give Malia Obama affirmative action because she has brown skin.

It should be about disadvantage, and therefore, you have a system that's really based on what affirmative action was originally meant to do and which I very much would have agreed with. There comes a point when basing it on skin color ends up meaning that the black child of a doctor and a lawyer gets into every school that they apply to, not having been subjected to the same standards as the white kids that they went to school with. And what the purpose of that is after a while is vastly unclear when you strip away the buzz words.

CONAN: Let's get Michelle(ph) on the line. Michelle is calling us from Oakland, California.

MICHELLE (Caller): Hi.

CONAN: Go ahead, please.

MICHELLE: I'm sorry. It's kind of faint to hear you. I'm a graduate student at the University of California, Berkeley, and I'm white and the first generation of my family to go to college. I got here shortly after Proposition 209 was passed, and I can tell you, I definitely noticed a drop in the number of African-American students in my classes when I'm working as a teaching assistant.

But also, I benefitted definitely from the first (unintelligible) of women who may have benefitted from affirmative action. I mean, in my department and in general in the university, I have a lot of role models, a lot of female professors, and I think in terms of the kinds of research questions they ask, in terms of looking at the impact of having children while you're trying to build an academic career, they've definitely made things easier for me.

CONAN: And, Michelle, let me ask. Just in the case of women, do you think affirmative action for women is still necessary?

MICHELLE: Yes, I do and definitely also for African-Americans and other people of color. But what's puzzled me the most in watching the debate over this in the broad public mind is how much flash and fire there is around affirmative action, which usually moves around the elite schools, the elite universities, and no one is really paying attention or getting in as big an uproar over the budget cuts. What's happening in state legislatures in general is funding for Cal state and community colleges, which I think impact just by shear numbers many more Californians and California taxpayers.

CONAN: OK, Michelle. Thanks very much.

MICHELLE: Thank you.

CONAN: And here's an email from Brenda in Ellensburg, West - Washington, excuse me. As a double minority, Native American woman, I have two different views on this subject. First, I understand how discrimination comes into play. We all discriminate in some way. And when we hire, we tend to be drawn to people like ourselves. When the majority of employers are white male, then you can see how minorities start on an uneven playing field, which is when affirmative action is needed.

On the other hand, I personally despise affirmative action because as a minority, no matter how much expertise you have in your field, there are always some that assume you only hold your position due to affirmative action.

And this from Jonathan in Andover, Massachusetts. Do the guests feel that affirmative action has any negative effects on the class of people receiving it? Well, we've heard John McWhorter talk about. Shantal - Shanta Driver?

Ms. DRIVER: You know, it's really interesting because at the University of California, when affirmative action programs were eliminated, there was a rise in racism, and if you go to UC Berkeley or you go to UCLA today, and you talk to black or Latino students on the cam - on one of those campuses, they will tell you that there are people that come up to them every day and say, you don't deserve to be here. Didn't you get in because of affirmative action, knowing full well that those programs were eliminated.

The problem isn't affirmative action. The problem is institutional racism and racism that gets expressed in terms of trying to get rid of affirmative action programs. And I think that the campus environment has become more hostile at places where affirmative action programs have been eliminated to black and Latino students.

I think the students that have gone to those universities - I'm a beneficiary of affirmative action. My dad's black. My mom is from India. I had the opportunity to go to Harvard University in the early 1970s, and I know I would not have gotten it but for affirmative action programs, and I felt every bit as qualified as anyone else who was there to be there. I felt like I made a contribution to that institution, and I felt like it was really important to cut into the idea that separate could ever be equal.

And I think when - I agree that there's a focus on more of the prestigious or lead institutions in the debate because that's where affirmative action programs are used the most, you know, frequently. But I think that arguing that black or Latino students should accept being excluded from those elite institutions, that there should be a new ban, a new separate and unequal education policy for the United States is something absolutely unacceptable.

CONAN: Do you really think it's fair to characterize it as a ban and just to say that you have to make the same grades?

Ms. DRIVER: It's not that you have to make the same grades. Black and Latino students who go to these universities are students that are the highest-performing students from the schools from which they come. They're students that were A students that did everything possible to come out of a Roosevelt High School, one of the largest high schools in the country, which is in the city of Los Angeles and is 98 percent Latino. They've been those students that have applied the discipline and the care and the interest in learning.

And the problem for them is that there is something called the SAT and the ACT, which stands as a kind of bar at the campus door for those students tests that everybody has known for the last 30 years are biased and discriminate against educational opportunity for minorities.

CONAN: OK, we get your point now. OK, thank you. We're talking about the future of affirmative action with Shanta Driver, who you just heard, and also with John McWhorter. You're listening to Talk of the Nation from NPR News.

And, John McWhorter, I know you've been teaching on some of those campuses at that time. Has that been your experience, that this continues questions about, you only got in because of affirmative action even after affirmative action has been eliminated?

Mr. MCWHORTER: Well, I would have to say that during the time that I was at Berkeley after the ban, I did not hear a black student say that. And I think that, if we try to do a study that demonstrated that a significant number of black students are having the experience that every day - and that's what the other person said - every day, a white person is coming up to them and saying, you got into this campus because of affirmative action, I think it would be a study that wouldn't come up with much. I frankly suspected a study that one black student was enduring that daily experience would not come up with much. So I'm not sure what we're talking about there.

But I think another point is that SAT tests and bias, that's a buzz phrase. I mean, the SAT test does not require you to know what wine goes with chicken. It's not biased against people who didn't grow up in opulent Scarsdale homes. It's very hard to see how it's biased against people with brown skin or people whose experience is one that is not the experience of the, you know, the affluent white kid.

It's true that people don't do as well on them to a certain extent depending on their class. That's a whole different issue, but it doesn't mean that the test itself is biased against them. I think we have to use language more precisely than that. And in general, it just seems that if we keep talking about re-segregation and banning and things like this, than we end up going for the emotional aspect of it, when really, this is the crucial point.

After Ward Connerly did what he did in California and just kind of took a bomb to the racial preference system, it was only then that really concentrated efforts started happening of preparing more minority students for making the grades and the test scores that you needed to be in the flagship schools. And in this general climate, where the old style of quota system is going out of fashion, we're seeing, for example, the minority student achievement network, where black parents in cities across the country are getting together and helping their children to perform in terms of grades and test scores at the level of other kids.

And the fact of the matter is, and I've often argued this, when you have the quota systems in place, it's a disincentive for the hard work of coming up with programs that actually teach the kids how to ring the same bell as the white and the Asian kids, and I think that's what we really want. So you end up having to have a certain dip - for example, the one in the late '90s in California. I don't think it was a tragedy for the race, and in the meantime, really good work comes out of what happens afterward.

CONAN: Quota system, probably one of those buzz words, too. John McWhorter, thank you very much.

Mr. MCWHORTER: Thank you.

CONAN: John McWhorter, senior fellow with the Manhattan Institute, his latest book is "Our Magnificent Bastard Tongue: The Untold Story of English," with us from our bureau in the New York. Shanta Driver, chairperson and national spokesperson for By Any Means Necessary, with us today from member station WUOM in Michigan Radio. Thanks very much for your time today, too.

Ms. DRIVER: Thank you.

CONAN: When we come back, we're going to be talking about a national day of service. Barack Obama was out painting a wall today. How has your experience been on this Martin Luther King Day? Give us a call, 800-989-8255. It's the Talk of the Nation from NPR News.

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