Affirmative Action in the United States and France: The Case of Higher Education Let me start by being as clear as possible about what I mean by «affirmative action»

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Affirmative Action in the United States and France: The Case of Higher Education

Let me start by being as clear as possible about what I mean by « affirmative action » in the American context. Until the end of the 1960s, affirmative action policies were mainly concerned with increasing the number of black applicants to a given position by running job advertisements in black newspapers or by setting up special training programs in areas where blacks were heavily concentrated. This type of affirmative action – also known as “outreach” – did take race into account, but in a rather limited way. Race was allowed to enter the picture only within the preliminary process of enlarging the set from which individuals would then be selected, not at the selection level itself.

In current affirmative action policies, however, the recruitment process is often entirely permeated by color-consciousness, even during the final, decision stage. The expression “affirmative action” is now mostly used to identify those measures initially set up in the very beginning of the 1970s by executive agencies and the federal judiciary that grant a more or less flexible kind of preferential treatment in the allocation of scarce resources – jobs, university admissions and government contracts – to the members of groups who were formerly targeted for, official, legal discrimination. These groups are African Americans, Hispanics, Native Americans, women, and sometimes Asians. I should also make clear that the phrase “preferential treatment”, in my view, should not be understood as having any negative connotation. I am not assuming that such preferential treatment cannot be justified. And what I call preferential treatment is a situation where, for example, a minority applicant that we may call M1 would be selected for a job - and a job for which he or she is normally qualified in a minimal sense, affirmative action is definitely not about giving a preference to people who are unqualified in absolute terms - in spite of there being at least one non-minority applicant whose qualifications were deemed to be “higher”. Now what does “higher” mean? “Higher” means that if another minority applicant that we may call M2 had come up with exactly the same qualifications as the non-minority applicant who didn’t get hired, the employer would have hired him instead of the first minority applicant, M1. In other words, racial identification is the key factor here: M1 succeeds in obtaining the job that he applied for and he would have failed but for his being identified as the member of a “minority”. This is the kind of affirmative action that I will be concerned with in the rest of my presentation, because it is the only one that is a subject of political and legal controversy: rightly or wrongly, hardly anyone opposes affirmative action as outreach. What people are arguing about is affirmative action as preferential treatment, that is, affirmative action insofar as it seems to conflict both with the principle of meritocracy - the principle under which the most qualified applicant should always be selected -, and with the principle of color-blindness - the principle under which race should never be taken into account in decisions over the distribution of resources such as jobs, admission to selective universities or government contracts. Those two principles are often conflated in the affirmative action debate, but they are actually distinct. You may oppose affirmative action because you believe that it is intrinsically wrong to use criteria other than conventionally measured qualifications to make decisions about the distribution of goods like jobs or university admissions, or because you believe that, within the set of these potentially extra-meritocratic criteria, it is always intrinsically wrong to use race specifically, or because you believe both things, of course. But you don’t have to believe both things. And as a matter of fact, there are empirical reasons to believe that Americans are more attached to meritocracy than to the principle of color-blindness per se. This is a point to which I’ll come back later.

Now, partly because affirmative action is in conflict with these two more or less widely shared principles, it runs the risk of triggering negative side effects, that is, unintended consequences which turn out to be exactly contrary to its initial purpose. Some of those negative side effects are due to the existence of the policy, but some others are related to the visibility of the policy. Logically, a situation where affirmative action programs would be in force without anyone knowing about it would allow to avoid negative side effects of the second kind – that is, those that are specifically related to the visibility of such programs. In this paper, what I am arguing is that some of the most important developments in the Supreme Court case law on affirmative action and racial discrimination in general, can be understood as reflecting a tendency to minimize those negative side-effects specifically related to the visibility of the policy, a tendency to approximate the state of affairs that would result from the unknown implementation of affirmative action programs. And this is so partly because affirmative action is a policy that requires a measure of dissimulation to succeed.

Now what does it mean for affirmative action to « succeed »? Here, I find myself in agreement with the justification put forward by philosopher and legal scholar Ronald Dworkin, who argues that the ultimate goal of affirmative action should be the deracialization of American society. Basically, the idea is that by improving African Americans’ economic and occupational predicament, one will eventually diminish the reliability of skin color as a proxy for social status. An increase in the number of blacks working in occupations carrying power and prestige - which is the immediate goal of affirmative action - should ultimately bring about a decrease in the degree of racial identification in American society, by reducing the still-prominent correlation between color and social class. This argument in favor of affirmative action is ultimately grounded on the assumption that the enduring saliency - the enduring relevance - of race largely stems from the objective informational value that skin color still retains in contemporary America - a value that derives from the inequality in the distribution of social goods between blacks and whites. In this light, the goal of affirmative action would be to provoke a decrease in the number of instances where race would rightly appear to be a useful proxy for some other, contextually relevant information – a useful proxy, that is one that self-interested actors would be well-advised to take into account -, and the fact that they are taking it into account paves the way for a whole range of decisions by which black Americans are systematically disadvantaged. In that way - and in the long run -, one may hope to achieve a truly “color-blind » society.

This being said, the argument that I would like to make as far as affirmative action in the US is concerned is twofold. First, the very nature of what may be conceived as the ultimate goal of affirmative action – namely, the deracialization of American society – would make it counterproductive to fully disclose that policy’s most distinctive and most contentious features, that is, its non-meritocratic component and the extent to which some of these programs take race into account. Second, in several Supreme Court decisions – the importance of which is widely acknowledged quite independently of the interpretative framework that I suggest – judges have made a significant contribution to that rational process of minimizing the visibility and distinctiveness of race-based affirmative action.

About the first point, part of the problem here lies in the fact that the very action of stressing this justification for affirmative action as an instrument toward the deracialization of American society may actually undermine the policy’s effectiveness. Here one should make a distinction between two possible meanings of the word “color-blindness” – although these two meanings are often conflated in the affirmative action debate. Color-blindness may be understood either as an actual end-state, as a descriptive feature of the ideal society, or as an immediately valid and legally binding principle, according to which one ought to act as if one were literally color-blind, which admittedly is not the case. The real issue is whether color-blindness in that second sense is actually the best strategy for promoting color-blindness in the first sense, or whether a race-conscious strategy such as affirmative action would be more effective. Yet, there are reasons to believe that color-blindness – in the first sense – belongs to a specific category of mental states which can not be brought about intentionally, because the very attempt to do so will prove self-defeating. Those states have been defined by philosopher and political scientist Jon Elster as « states that are essentially by-products ». Examples include sleep, forgetfulness, spontaneity, or innocence. If you actively try to sleep, in the short run you will fail precisely because of the fact that you are trying. If you actively try to be spontaneous, you will fail because the very notion of spontaneity is essentially incompatible with the fact of trying to be anything in particular. If you actively try to forget something, this very effort will keep that thing present to your mind. And so on and so forth. In short, the defining feature of these mental states is a lack of intentionality, which seems incompatible with the intentionality of the desire to make them occur. When what is being aimed at is a state that consists in the absence of a specific form of consciousness, that lack of consciousness cannot itself be the product of an act of consciousness. And color-blindness, by definition, does consist in the non-consciousness of race, in a kind of natural indifference towards racial distinctions, which may be the object of a wish but cannot arise as the product of a specific intention. As Elster says, quote, “the project of deliberately removing a given thought or representation from one’s mind is analytically self-defeating, “since it requires a concentration ... that is incompatible with the absence of concentration one is trying to bring about”. It is plainly impossible to become indifferent the way French 17th century philosopher Pascal thought you might become a believer, namely by pretending to believe. In short, a case can be made that color-blindness has the property that it can only come about as the by-product of actions that must look like they have been undertaken for other ends. Elster’s analysis therefore reinforces the hypothesis according to which affirmative action as part of a deliberate attempt at reducing the degree of racial identification in American society must be concealed in order to achieve its intended effect.

Now even aside from the difficulties involved in explicitly stating what the ultimate goal of affirmative action should be, as I said before, attempts to reach the goal of deracialization may also be frustrated by some negative side-effects specifically induced by the visibility of the policy itself. Among those negative side effects, the most dangerous one is probably the additional stigmatization that may be inflicted on those who are supposed to benefit from affirmative action programs. Because these policies logically imply an acknowledgement of the fact that those who benefited from the « preference » involved would not have gained their current position without it, there is a risk of fostering the suspicion that they are not fully « qualified » for such positions - a suspicion the existence of which was one of the strongest reasons for setting up affirmative action programs in the first place. Since it is generally impossible to draw a line among the potential beneficiaries of affirmative action between those who did take advantage of it and those whose qualifications were already high enough to make any kind of preferential treatment appear entirely unnecessary, there is a chance that the aggregate level of stigma experienced by blacks as a whole might still increase as a result of the race-specific nature of the policy. It would be unwise to dismiss the possibility that the distinctions among applicants that are reinstitutionalized by affirmative action should come to be understood as at confirmation of the validity of racial and gender negative stereotypes. This reinstitutionalization of race may give the impression that negative stereotypes about blacks are actually shared by the authorities responsible for establishing affirmative action programs. In short, in order for the elevation of minority group members in the economic and occupational hierarchy to be taken as evidence of how inaccurate negative stereotypes about them had been, one should not be able to dismiss that elevation as resulting from an antimeritocratic scheme specifically designed to that end. The fact that it is common knowledge that blacks and other disadvantaged minorities are receiving some kind of special treatment may well modify the social meaning of their gaining access to top-rank positions. To put it more bluntly, an assessment such as “He’s an Ivy League graduate; he must be a very bright fellow” may turn into something like “He’s a black Ivy League graduate; maybe he wouldn’t have gotten where he is now but for affirmative action”. And of course, that second assessment may trigger very different anticipations about the performance of the individual involved, and such anticipations may lead to discriminatory practices of their own kind.

What I want to suggest here is that because affirmative action might generate negative attitudes toward its intended beneficiaries beyond those already in place, one may be tempted to dissimulate, or at least to systematically downplay the most contentious aspects of the policy, namely its antimeritocratic component and the extent to which it takes race into account. In short, affirmative action may well be an example of a case where the effectiveness of a policy depends on the existence of a kind of “self-erasing process” designed to extract its very occurrence from the mind of the those people whose perceptions one wants to transform. The success of affirmative action would then be proportional to the decision makers’ ability to disguise how the policy actually operates. And what I find interesting is that a fair degree of concealment has been taking place in the Supreme Court case law. Here, there are quite a few examples. In the paper, I rely mostly on the 1978 decision Regents of the University of California v. Bakke, about which I’ll say a few words now, before moving on to the French case.

The Bakke case was about the constitutionality of an affirmative action program that had been set up by the Medical School of the University of California at Davis, and under that program 16% of each freshmen class had to be made up of « minority » students (in that case, Blacks, Asians, Chicanos and Native Americans). The Supreme Court, through the opinion of Justice Powell, eventually struck down that quota as violating the Equal Protection Clause of the 14th Amendment. At the same time, Powell also insisted that race and ethnicity might still be taken into account in university admissions, provided that it should be in a flexible and individual-centered way, as part of a legitimate concern for promoting the so-called « diversity » of the student body.

__ According to Powell, just as diversity in the applicants’ geographical origins as well as in their (both academic and extra-academic) interests and talents is usually considered in admission decisions, racial diversity should be viewed as one more component of the kind of global diversity traditionally favored by university officials. I quote him:
“ ... the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard college that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer”.
In short, race may enter the selection process provided it does not enjoy a dominant position, that is, as long as it must compete with other diversity-enhancing features, the number of which is not to be limited in advance. In this respect, race would be treated just as all the other distinctive features already taken into account by admissions committees beyond applicants’ test scores and past academic performance. Affirmative action would then stand as just one more marginal deviation from a largely fictitious meritocratic rule. In that way, the legitimization of the policy proceeds through its reinsertion into a preexisting tradition by which university officials enjoy a substantial amount of discretionary power to select members of the student body according to the requirements of diversity promotion. The notion of diversity is simply expanded to include race among its constitutive elements, as stated by the president of Harvard College quite explicitly – in an amicus curiae brief quoted in Powell’s opinion: “The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard college admissions. Fifteen or twenty years ago, however, diversity meant students from California, New York, and Massachusetts; ... violinists, painters and football players ... In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged ethnic and racial groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos...”.

At the same time, the actual operation of the “flexible” affirmative action programs that Powell finds constitutionally admissible does not match his description of them. In most cases, although race is supposed to be only one among many objective features capable of contributing to “diversity”, it is monitored throughout the admissions process in a more systematic way than any other one. When applications are being handled by admissions committees, officials from the admissions office often run statistical projections in order to anticipate the ethno-racial profile of the incoming class, and they make ex post facto adjustments if the likely proportion of black and Hispanic students falls beneath a certain threshold. To follow up on the example mentioned by Powell, the percentage of “violinists”, or “painters” among Harvard students – or even the percentage of individuals from a specific state – may undergo wild fluctuations without anyone even noticing; this is definitely not the case with African Americans and Hispanics.

Also, for the white individual whose application is being rejected as a consequence of “minority” membership being considered as a “plus”, the difference between that presumably “flexible” program and a more rigid kind of affirmative action is hardly significant. Whether all white applicants are being flatly excluded from a specific percentage of admission offers because of a minority quota or simply suffer a “handicap” in the competition for each one of them as a corollary of the “bonus” awarded to blacks and Hispanics, in both cases, their probability of success will decline. The seriousness of the disadvantage imposed upon them depends on the extent of that handicap, not on the administrative procedures by which it will come into existence. In other words, as Ronald Dworkin puts it, “the point is not only (…) that faculty administering a flexible system may covertly transform it into a quota plan. The point is rather that there is no difference, from the standpoint of individual rights, between the two systems at all”. At the same time, there is a politically relevant difference between the two programs, and that is a difference in the visibility of the extent to which race is taken into account. As a practical matter, what Powell does is to make this politically relevant difference legally relevant as well, by declaring the flexible kind of affirmative action program to be constitutionally valid - while the quota one is not. In that way, the constitutionality of affirmative action policies in university admissions is made to depend on the more or less ostensible nature of the formal procedures involved. The constitutional validity of affirmative action policies depends upon whether the extent to which race is taken into account in university admissions remains properly concealed.
Now what about France? Well, in France too, some kind of dissimulation is going on as far as affirmative action is concerned, although the factors accounting for that dissimulation are somewhat different. Actually, the policies themselves are different since in France, the main operational criterion for identifying the beneficiaries of affirmative action is not race, but place, that is geographical location: as a general matter, residents of an area designated as economically disadvantaged will indirectly benefit from the additional input of financial resources allocated by state agencies to that area as a whole. So much for the general background. What I want to do know is briefly present a case study focusing on the first affirmative action plan recently designed in the sphere of higher education by one of France’s most famous selective institutions, a publicly financed yet largely autonomous establishment called the Institut d’études politiques de Paris (Paris Institute for Political Studies), and more generally known as « Sciences-Po », which is my own institution, by the way. (For those of you who might be more familiar with the British education system, I’d say that Sciences-Po is more or less an equivalent of the London School of Economics). What I want to suggest here is that in spite of the obvious differences between US and French affirmative action programs in the field of higher education, there are also some structural similarities between the policies, the problems that they face, and the arguments that have been made in order to legitimize them.

About five years ago, a widely publicized study on the class and family background of Sciences-Po students came out. What it showed was an increasing homogeneity: to take but the most striking example, in the year 2001, less than one percent of the students came from working-class backgrounds – as opposed to 12.5 percent of those students enrolled at other, non-selective universities. In order to counter that trend, the director of Sciences Po decided to create a special admission track for the students of seven high schools located in economically disadvantaged areas called zones d’éducation prioritaire (priority educational zones – in French, the acronym is ZEP). Under this new admission scheme, those students were exempted from the competitive exam imposed on all other applicants and they were to go through a substantially less selective admission procedure. I won’t go into the details here, but « substantially less selective » means that while the admission rate of students going through the traditional admission procedure was 11%, it was 19%, that is almost twice as much, for those ZEP students.

Now obviously this affirmative action program is clearly different from the American ones in a number of respects. First, as a practical matter, it does not entail any decrease in the number of slots reserved for the ‘traditional’ candidates, that is, those who enter Sciences po on the basis of exam scores coupled with the usual interview, which means that an individual belonging to the majority of those who do not benefit from that program can hardly claim to be victimized by it. People may still reject the program on grounds of principle, because they disapprove of its allegedly unmeritocratic nature, but it will be much more difficult than in the United States for anyone to argue that he or she was personally disadvantaged by the additional creation of a few slots reserved for ZEP students. Second, and most importantly, because Article 1 of the 1958 French Constitution provides that quote - ‘the Republic (…) guarantees the equality of all citizens in the eyes of the law, regardless of origin, race or religion’, unquote, race is not supposed to play any part in the process leading to the identification of the program’s actual beneficiaries. In this respect, the French constitutional framework is strikingly different from the American one. As you know, there is simply no similar provision in the U.S. Constitution as far as race is concerned; aside from the field of voting rights, in which you do have a prohibition on race-based distinctions enshrined in the Fifteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment only says that, quote, ‘no state shall deny to any person within its jurisdiction the equal protection of the laws’, unquote, and that Clause was not originally intended to incorporate a general rule of ‘color-blindness’. This has been shown persuasively by legal historians such as Andrew Kull or Eric Schnapper, for instance. In France, by contrast, the issue of whether one ought to infer a rule of color-blindness from the constitutionally-grounded principle of equality was not left for the courts to decide: it was settled beforehand and the answer was incorporated into the text of the Constitution itself. In short, in France, the Constitution is indisputably color-blind, and American race-based affirmative action policies are generally viewed in a negative light, as a too risky – or straightforwardly repulsive – model, from which one ought to remain as distant as possible.

This is remarkable, since the Sciences Po experiment clearly could have been framed as an affirmative action, or at least as an antidiscrimination policy. Consider, for instance, that it is actually predicated upon an acknowledgement of the “disparate impact” that the traditional entrance exam has on those applicants from underprivileged backgrounds. In 2001, while the admission rate for all applicants was 12.5 percent, it was 20 percent for children of professionals and academics as against 3 percent for children from working-class backgrounds. There was a consensus on the need to reduce this discrepancy, which implicitly and maybe unconsciously relied on the US-born notion of indirect discrimination, as defined in the Griggs decision. But here again, there are some major differences. First, because of article 1 of the 1958 Constitution, only groups defined on an economic and occupational basis will be targeted for this kind of small-scale compensation. In the US, it is just the opposite: as a practical matter, only women, racial minorities and the handicapped will be protected against indirect discrimination. In the 1973 decision San Antonio Independent School District v. Rodriguez, the Supreme Court made clear that “the poor” were not entitled to protection against discrimination as “disparate impact” because of the, quote, “amorphous” character of that group and because its members had not been “subjected to a history of purposeful unequal treatment”. A second difference is that contrary to what the Griggs standard would prescribe in the American context, acknowledging that the Sciences Po entrance exam had a disparate impact on students living in economically and culturally impoverished neighborhoods did not lead to the more drastic conclusion that, instead of being supplemented by a corrective scheme of some kind, it ought to be eliminated and replaced by other, disparate-impact-free procedures, since those were considered not to exist. That every possible kind of admission scheme would have a disparate impact on the economically disadvantaged was simply taken for granted.

At the same time, the contrast between U.S. and French affirmative action programs in university admissions is probably not as stark as it seems. This is so because one of the main criteria used for delineating a priority educational zone is the rate of failure in high school, and that criterion itself happens to be correlated with the proportion of children whose parents are foreign nationals. Therefore, the Sciences Po program, although it officially embodies an area-based and class-based approach of affirmative action, may also be understood as indirectly and implicitly targeting groups that, in the American context, would be considered as ‘ethnic’ or ‘racial’ minorities, in particular the group of second-generation North African immigrants. It may seem at least plausible to read this formally color-blind policy as partaking of a “hidden agenda” specifically directed at accelerating the integration of these second-generation immigrants into the mainstream through a “substitution strategy” – that is, a strategy by which what looks like the secondary effect of a facially neutral distributive rule is in fact the reason why that rule has been enacted, in a context where pursuing the decision-maker’s true objective in a more straightforward manner, that is, without using the neutral rule as a proxy, would be considered illegitimate. In this light, the Sciences Po initiative may be understood as a proxy, as a functional substitute for the openly color-conscious U.S. affirmative action programs, insofar as it does have an expected, positive disparate impact on individuals of North African extraction. In other words, it can be conceptualized as an indirect, race-based affirmative action policy, the only issue being whether its racial dimension is actually intentional on the part of those responsible for setting up the program, or only incidental. And the same goes for the urban development strategies by which state authorities offer tax cuts as incentives to induce companies to locate in disadvantaged areas and require them to hire young residents from that area. At first sight, the beneficiaries of these other, territory-based affirmative action programs are selected exclusively according to color-blind considerations. In order to define the "tax-free zones" established in 1996, for instance, the criteria taken into account include the number of residents, the corresponding tax base, the proportion of university graduates, the unemployment rate and the percentage of residents under 25 years old. Yet, because the latest waves of migrants, in particular African families – both from North Africa and from Sub-Saharan Africa – happen to have higher birth rates and higher unemployment rates than most other groups, they obviously stand to gain, on average, a greater benefit from this class-based yet arguably race-oriented affirmative action.

Even if we consider that these policies are actually not race-oriented and take for granted that their positive disparate impact on racial minorities is incidental, there is yet another striking resemblance between U.S. and French affirmative action policies, and this resemblance lies in the attempts made by their supporters to systematically minimize the negative side-effects on their beneficiaries’ public image potentially induced by the visibility of the programs. What I have in mind here is the additional stigmatization of these individuals due to the widespread perception that their academic success is a result of an antimeritocratic scheme specifically designed to that end. Now in France as in the United States, this strategic attempt at reducing the negative side effects of affirmative action to the greatest extent possible was reflected in a celebration of the virtues of « diversity ». Actually, the very title of the Sciences-Po program is ‘Conventions zep: l’excellence dans la diversité (excellence through diversity)’. On the American side, as we just saw, the argument made by Powell in the Bakke case and, more recently, by Justice Sandra O’Connor in the 2003 Grutter v. Bollinger decision, was that racial diversity ought to be viewed as just one more component of the global diversity of the student body traditionally favored by university officials, on a par with other features like the applicants’ geographical origins or their academic and extra-academic interests and talents. On the French side, Sciences Po officials also attempted to counter the merit-based objection by pretending to include the fact of coming from a priority educational zone into a larger set of presumably similar, institutionally beneficial, diversity-enhancing characteristics, such as entering Sciences Po after having earned another, B.A.-level degree instead of immediately after high school, or being a foreign student.

But these rhetorical strategies designed to legitimize affirmative action and to minimize some of its negative side effects have their own costs as well. On the American side, the explicit reliance by Justice Powell and many other proponents of affirmative action on the existence of a correlation between racial diversity and diversity of viewpoints may well further entrench some stereotypes as to the typical features of the different racial groups. On the French side, from a symbolic point of view, it may not be such a wise idea for Sciences-Po officials to rely on this bizarre analogy between ZEP students and foreign students, not only because most ZEP students are French citizens, but also because the fact that they sometimes are not treated as such on account of their foreign (that is, North African) extraction is precisely one of the factors that account for their being disadvantaged in the first place. Therefore, a policy that seems to incorporate an assumption that ZEP students are actually quite similar to foreign students – in their proclaimed inability to enter Sciences Po without a specific admission track being set up for that purpose – that message does run the risk of reinforcing the perception of their ‘deficiency’ as compared to non-ZEP French students, which is troubling since that perception is also the basis on which other, more far-reaching and less benign distinctions are very often made.

In conclusion, I would suggest that, notwithstanding the recent 2003 Supreme Court decisions upholding, once again, the most covert forms of affirmative action in university admission, the backlash against affirmative action in states like California, Texas and Florida actually paves the way for a convergence between the U.S. experience and the French one, not only at the level of the rhetoric employed to justify such policies - as we just saw -, but also in terms of the policies themselves. Let’s look at what happened in those states that did away with race-based affirmative action programs. In Texas, in April 1997, the legislature responded to the drop in the number of black and Hispanic students due to the elimination of affirmative action in state universities by voting a bill instructing those universities to admit the top 10% of every high school’s graduates regardless of grades and test scores. Similar policies were then introduced in California and in Florida. The effect and the purpose of these so-called “percentage plans” is to reduce the ongoing decline in the proportion of blacks and Hispanics among state university students, and that is made possible by the fact that in those states, there is still a large number of high schools where almost all pupils belong to one of these two minority groups. In other words, just like in the French case but to a much greater extent, the persistence of de facto school segregation provides state authorities with a functional substitute for race-based affirmative action. In those states, paradoxically enough, we now have a situation where “the explicit use of race in a college admissions formula is forbidden, while the intentional use of a proxy for race publicly adopted so as to reach a similar result is allowed”. Since hardly anyone is actually willing to face the predictable consequence of strictly “color-blind” admissions policies – namely, a sharp decline in the percentage of African Americans and Hispanics in some American elite universities and professional schools –, regardless of what the Supreme Court says, any successful assault on race-based affirmative action in the near future will be mitigated by subterfuges of some kind, whose underlying function is only to diminish the visibility of race-consciousness in contemporary America. It is in relation to this euphemization process that U.S. and French affirmative policies might come to look more and more similar in the oncoming years.

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