Californians are anxious these days. Calamities of Biblical proportions bedevil the state. The worst flooding in memory occurred this year, the worst fires are but yesterday and will return tomorrow, earthquakes sufficient to reveal seismic weaknesses have rattled north and south.
Recrimination, anger and resentment are rampant, although not just because of politics. Hate mail and other vicious slanders threaten to accompany a nasty disagreement over the successes or failures of affirmative action policies. California has put these policies under scrutiny by means of the much-used plebiscite or initiative legislative process recognised in the state's constitution, although a cheaper alternative would first be pursued through the bicameral legislature.
Born in the aftermath of the civil rights movements of the 1950s and 1960s, affirmative action carries many meanings and is embodied in many different kinds of policies. For higher education, the application is primarily student admissions and the preferential hiring of women and minorities. Court tests on "reverse discrimination" left affirmative action practices more or less intact as "guidelines".
Under them, universities and colleges could attempt to improve the gender and ethnic balance of campuses at all student and staffing levels. Where imbalances did not exist, as in the present case of Asian-American students, who comprise 25 to 30 per cent of the entering freshman classes at the Berkeley and Los Angeles campuses of the University of California, the word "minority" was not applicable irrespective of the size of the Asian-American population in the state.
This did not please the well-educated and prosperous parents of Chinese, Japanese or Korean ancestry, since their achievement-minded offspring might have to yield places to students still defined as members of a minority. For them, affirmative action had come to mean exclusion rather than inclusion.
Universities, as well as the nation at large, are obsessed with problems of difference. Anyone curious as to how race is played out through the interstices of American institutions has only to glance at some of the alarming characteristics of the criminal justice system as revealed by the protracted murder trial of a rich and popular African-American football player in Los Angeles.
When first proposed, affirmative action policies were not especially welcome to universities. Presidents and faculty alike were concerned about the bureaucratic reporting process and general interference with academic self-governance. Would targeted minorities one day resent the condescension? Even more significant was a history of a hidden numerus clausus often used between the two world wars against Jews applying to medical schools or seeking academic appointments outside New York City. Was it possible that affirmative action really did mean quotas?
Private elite institutions still treat admissions as a craft mystery. It is deemed important to admit students with many kinds of talents and experiences, and selection is based on a variety of criteria. Furthermore, to ignore the interests of comfortable alumni whose children have reached university age would be fatal. Many public as well as private institutions regularly attract outstanding athletes. The Fighting Irish of Notre Dame University in South Bend, Indiana, are always fighting even if they are not always Irish. Church-related colleges can legitimately confine entry to adherents.
In the absence of readily-available documentation, the extent of past discrimination is difficult to gauge; but when measured against known cases, affirmative action appeared to some to be a reversal of newer colour-blind policies. The older generation of academics divided. Those accepting "guidelines" did so in hope that like the Marxist state they would vanish when their historical purpose was fulfilled. But how long was the wait to be?
A younger generation of academics grew up in an era of affirmative action. To them, a defence of existing policies or practices was a defence of tradition, and descendants of the mediaeval university dearly love to say they are defending tradition. A third generation of academics has now appeared as a consequence of retirements from the first. Their attitudes are not easy to discern.
A writer in a recent issue of The New Yorker states that "affirmative action gives white males whining rights in the victimisation bazaar". This counter-attack, by now a cliche, does not stand up all that well in the early California polls, for substantial numbers of Asian-Americans, women and Hispanics also show a disinclination to support affirmative action in the forms presently used. The fight to abolish or mitigate them in the University of California is being led by an African-American member of the Board of Regents, although again polls show most African-Americans are in favour of retaining ethnic preferences.
Academic leaders are looking at how student admissions as well as staff and academic hirings, contracting and other aspects of a university's economy may be affected by legislation intended to prevent preferential hirings based on ethnicity, race or gender.
Yet the way in which programmes designed to attract and develop talent from undeserved groups are likely to be influenced by law will depend on how legislation is written, whether its language is vague, requiring recourse to the judicial system, or sufficiently ambiguous to allow universities to continue affirmative action under another name (eg "need"). It will also depend on outside enforcement and penalties for failing to comply. This is a Catch-22, for in the present anti-government environment where cost-cutting is a principal goal, regulatory agencies may simply lack the resources to keep an eye on homo academicus, whose foraging habits are wide.
This has certainly happened in other areas of California life. An initiative passed several years ago forcing insurance companies to provide rudimentary earthquake protection or to charge more equitable premiums has virtually died. Insurance companies either decamped to other states or threw legions of lawyers at undermanned state agencies.
Given ideological differences, the balance sheet on affirmative action is hard to draw up. Individuals undoubtedly have benefited personally from carefully-applied criteria of goals and assessments. But it may be puzzling for historians to distinguish such instances from forces released by the revolutionary period of civil rights. While the United States has grown more crude and violent, there is greater accommodation of ethnicity and gender matters. Perhaps the best proof of the national sensibility is the absence of a continental-style xenophobic right-wing political party.
The attention of visitors from abroad is understandably distracted by grandstanding in the House of Representatives in Washington, but opinion still inclines toward moderate solutions to radical problems. This is good or bad, depending upon one's outlook (and the problem), but a Montesquieu might say that it augurs well for the survival of the spirit of affirmative action in universities even when the law itself withers away.
Sheldon Rothblatt is director of the Consortium for the Study of Society and Education at the University of California, Berkeley.