The Most Bizarre Affirmative Action Abuse
by James S. Robb

from National Review magazine, November 6, 1995

Amidst the furious debate over affirmative action, the growing realization that some of the biggest winners in race preference schemes are not Americans at all gives new ammunition to conservatives and a new headache to liberals wishing to save the system.

Consider: The prestigious University of Texas Law School maintains a minority setaside admissions program for blacks and what it terms "Mexican-Americans." This program gained national attention when a particularly qualified white woman named Cheryl Hopwood was refused entry after she applied in 1992. Hopwood boasted a 3.8 college GPA, and school officials openly acknowledged that she probably would have gained admission had she been one of the recognized minorities. Feeling that her place had gone to a lesser qualified minority student, Hopwood sued in federal court, where it remains on appeal.

I became suspicious about the term "Mexican-American," as used by the law school, so I telephoned Stanley Johanson, who heads the school’s admissions committee. Johanson confirmed that "Mexican-American" in reality meant anyone of Mexican heritage who was not in the U.S. illegally; they need not be citizens or even permanent residents.

However, Johanson could not say whether Mexican citizens were taking slots in the Texas minority setaside admissions program, because the school does not bother to inquire about citizenship. "There’s no philosophical objection" to foreign nationals receiving the preference, he acknowledged. Hence, nothing would have prevented Ms. Hopwood’s place at the law school from being given to a foreign citizen.

As unlikely as it may sound, millions of immigrants and foreign visitors are eligible for—and many are actually using—affirmative action benefits to get a head-start on U.S.-born minorities, not to mention white Americans. In effect, many of today’s immigrants are getting off the plane and moving right to the head of the line.

How is this possible? It certainly bears little resemblance to the program’s original intentions. In the late 1960s, it simply never occurred to government planners that there would be so many aliens in the U.S. or that so many would be considered minorities.

Hardly anyone disputes that affirmative action’s original purpose was to right the wrongs white Americans had done to its black citizenry. More narrowly, President Nixon’s Labor Department launched affirmative action as we know it today when it found that black workers were being frozen out of construction jobs by labor unions in northern cities.

The Labor Department could not force the unions to allow blacks in. But it did have enormous leverage over companies awarded much-sought federal contracts. To force the integration of the nation’s work force, the government issued rules requiring federal contractors to set "goals and timetables" to get their percentage of minority hires up. Eventually, the government also decided to reserve a certain percentage of its contracts to minority-controlled firms.

The concept of preferences soon ran into trouble, as other American minority groups were added to the list of those who deserved a boost in employment, government contracts, etc. Then women were included. Finally, literally everyone but white males qualified for one form of affirmative action or another.

Ludicrously overloaded, affirmative action began to collapse of its own weight. Widespread resentment of the very idea of race preferences began to bubble to the surface.

Because affirmative action is keyed to race and ethnicity without regard to American nationality, foreign citizens routinely get special consideration as if they shared a history of U.S. discrimination with blacks and select other native minorities.

The results can be startling. Say, for example, a company has a goal to hire 10 blacks. Nothing says these have to be African-Americans, and they well may not be. All 10 may be people who until now spent their entire lives in another country.

Amazingly enough, this problem does not distress sociologists and most affirmative action bureaucrats. Indeed, to the multiculturalists who dominate this curious profession, the idea of reserving affirmative action for American minorities seems quaint at best.

"To make the connection that affirmative action should only be for native-born Americans seems kind of ludicrous to me," commented Larry Hardy, who is affirmative action officer for the Office of the President of the University of California system.

Getting the pool from which new University of California employees are chosen to match the ethnic and gender makeup of the surrounding area’s market as closely as possible was his mission, Hardy said. "Whether [potential employees] come from Africa or were born here, it’s irrelevant," he told me.

With views like that, it’s small wonder university regents voted in August to shut down affirmative action on their nine campuses. (Presumably, Mr. Hardy will be looking for work soon.)

But affirmative action programs remain entrenched elsewhere, particularly in the Fortune 500 corporations. The evidence is strong that they heavily extend their "minority preferences" to non-Americans.

Rita Reining, manager of affirmative action for Pacific Bell, the giant communications company, admitted to me that her company does not even check whether prospective employees are citizens, much less attempt to reserve affirmative action benefits to Americans. Bell is content to determine whether the applicant can legally work in the U.S. They don’t feel they can keep track of citizens and are not unhappy with the idea that non-citizens may help round out their affirmative action goals.

"If [newly hired immigrants] happen to be a racial or ethnic minority, they get counted that way," Reining said.

The use of foreign citizens to fill minority slots may be most prevalent in university faculties and in hi-tech fields. Of all U.S. science doctorates awarded in 1993, 46 percent went to foreigners. There were 10 science Ph.D.s awarded to non-citizen Asians to every one awarded a U.S. Asian. According to National Science Foundation data, about two thirds of these newly minted scientists plan to remain in the U.S.

It doesn’t take Ph.D.-level analysis to conclude that if each Asian-American must compete head-to-head with, say, seven non-citizen Asians, in an affirmative action hiring pool, the American is in trouble. Similarly, more science Ph.D.s are awarded to foreign blacks than American blacks, and more go to foreign Hispanics than to U.S. Hispanics.

Most new legal immigrants are considered to be ethnic minorities once they arrive here, and many of them are educated enough to immediately enter high in the mainstream work force. Thus, it’s no longer quite so difficult meeting those affirmative action goals for blacks, Asians, and Hispanics.

Members of the U.S.-born salaried work force—both minorities and the white majority—have plenty to lose when immigrants are vaulted to the head of the hiring line. Affirmative action is a fixed pie. A slice going to an immigrant is, of necessity, a slice that won’t feed an American. Similarly, the white majority, already resentful of race preferences, are likely to be doubly unwilling to play with a handicap vis a vis immigrants.

The great irony is that immigrants have not asked for this special treatment. Most immigrants come to this country to get a fair chance, not a socially-engineered head start.

Should corporations stop giving affirmative action benefits to immigrants? Doubtless, but today that is not possible. The reason is that Congress, in what was almost certainly an accident, made barring immigrants from affirmative action illegal. This happened when legislators passed the Immigration Reform and Control Act of 1986. In that bill, Congress made it illegal to bar immigrants from employment solely on the basis of their nationality.

What Congress didn’t count on was that by forcing employers to hire qualified legal immigrants, it was at the same time forcing them to treat the immigrants exactly as they would any other employees. If an employer ran an affirmative action program, and if an immigrant happened to be an ethnic minority, he had to be included in that race preference program.

Whatever the long-term fate of affirmative action programs, Congress and the administration should act quickly and decisively to reserve race preferences only for U.S.-born minorities as long as such preferences exist.A mere paragraph or two of legislation and a short executive order could end affirmative action for immigrants—the entitlement nobody planned and hardly anyone wants.

© 1995 by National Review. All rights reserved.

James S. Robb is Senior Analyst of The Social Contract quarterly journal and author of the study, "Affirmative Action For Immigrants: The Entitlement Nobody Wanted."