While the U.S. Supreme Court has upheld the consideration of race and ethnicity in college admissions, the future of affirmative action is far from certain. Some states have barred it and critics continue to look for ways to challenge it. In his new book, Affirmative Action for the Future  (Cornell University Press), James P. Sterba offers a defense of affirmative action. Sterba is a professor of philosophy at the University of Notre Dame and his analysis mixes philosophical and legal arguments. Via e-mail, he responded to questions about his book.
Q: How do you define affirmative action?
A: Affirmative action is a policy of favoring qualified women, minority, or economically disadvantaged candidates over qualified men, nonminority or economically advantaged candidates respectively with the immediate goals of outreach, remedying discrimination, or achieving diversity, and the ultimate goals of attaining a colorblind (racially just), a gender-free (sexually just) and equal opportunity (economically just) society.
Q: How vulnerable is affirmative action in higher education today?
A: The constitutionality of affirmative action in higher education has been endorsed by the U.S. Supreme Court in Bakke (1978) and then 25 years later even more firmly by a much more conservative U.S. Supreme Court in Grutter (2003). So affirmative action in higher education is not vulnerable at all from the courts. It has, however, been shown to be vulnerable to deceptively designed referendums as in California (Proposition 209) and Michigan (Proposition 2). When people in California were asked whether they would still favor Proposition 209 if it outlawed all affirmative action programs for women and minorities, support for 209 dropped to 30 percent while those opposed rose to 56 percent. But deceptively designed Proposition 209 was the referendum that legally banned affirmative action programs for women and minorities in California!
Q: Why do you distinguish in the book between "outreach," "remedial" and "diversity" affirmative action?
A: Outreach affirmative action has the goal of searching out qualified women, minority or economically disadvantaged candidates who would otherwise not know about or apply for the available positions, but then hire or accept only those who are actually the most qualified.
Remedial affirmative action attempts to remedy discrimination. Here, there are two possibilities. First, a remedial affirmative action program can be designed simply to put an end to an existing discriminatory practice, and create, possibly for the first time in a particular setting, a truly nondiscriminatory playing field. Second, a remedial affirmative action program can attempt to compensate for past discrimination and the effects of that discrimination.
Diversity affirmative action has the goal of diversity, where the pursuit of diversity is, in turn, justified either in terms of certain educational benefits it provides, or in terms of its ability to legitimately create a more effective workforce in such areas as policing or community relations, or in terms of achieving equal opportunity. Here it might even be said that the affirmative action candidates are, in fact, the most the most qualified candidates overall, since the less diverse candidates would not be as qualified.
Q: Do you view the moral arguments you make and the legal arguments you make as distinct? Which are more important to you?
A: I do see the legal and moral arguments for affirmative action as distinct, but sometimes they are intertwined. For example, showing that the U.S. Supreme Court has always interpreted diversity affirmative action to be in accord with the Civil Rights Act of 1964 and the 14th Amendment to the U.S. Constitution provides both moral and legal support for this form of affirmative action because these fundamental U.S. laws are at the same time also taken to be morally justified.
Q: How is the success of some Asian American groups in higher education changing the debates on affirmative action?
A: The success of some Asian American groups is a proven success of affirmative action. At the time of Bakke (1978) members of these groups did receive affirmative action. Today they no longer need affirmative action in order to be enrolled in top-flight colleges and university in sufficient numbers to bring the benefits of diversity. If affirmative action continues for members of minority groups who are still disadvantaged and steps are also taken to improve the still inferior K-12 educational systems that service these groups, in the not too distant future affirmative action as we know it will come to an end.
Q: Do you think opponents of affirmative action can be convinced to change their views?
A: Most opponents of affirmative action can be convinced to change their minds because they have formed their opinion about affirmative action knowing no more than half the facts and half the arguments that are relevant to an assessment of the practice. Once they get a fuller picture of what is relevant to an assessment of the affirmative action, they are confronted with good reasons to change their view. For example, once opponents do a comparative evaluation of diversity affirmative action against two other preference programs in higher education – legacy preference and athletic preference – each of which is twice the usual size of the college or university affirmative action program, it is difficult for them not to see the superior moral and educational justification of diversity affirmative action.
Q: Why is affirmative action important today?
A: My book begins by chronicling study after study showing present day racial and sexual discrimination in the U.S. Since direct government action against this continuing discrimination is both sporadic and weak, affirmative action programs still remain one of the more effective tools for undermining the racial and sexual prejudice that fuels this discrimination, thereby helping to diminish its frequency and severity.