I voted for 209 and I am not satisfied. Indeed, far from rejoicing, I was inclined to feel sorry for the forlorn group of protesters who wound their way around campus last week. For it occurred to me that the demonstration’s failure wasn’t simply a matter of creeping fatalism and bad weather. It was also indicative of massive changes in the political landscape since 1996. Affirmative action is now a dead letter in California as well as in those states — Washington, Texas, Louisiana, Michigan and Florida — which have followed the lead of California voters in banning it. In part, of course, this is because, after more than three years of litigation, it now appears highly unlikely that 209 will ever be overturned. But, just as importantly, there is a sense in which affirmative action has become obsolete. Though affirmative action as a state mandated policy has gone by the wayside, a new, more efficient, and — for those of us opposed to giving preferences on the basis of race or gender — far more insidious system has come to replace it.

The success of this new system, a hodgepodge of minority recruitment drives and de facto admissions’ preferences masquerading as diversity initiatives, suggests that 209 and the legislation modeled upon it elsewhere are doing for race- and gender- based preferences what prohibition did for alcoholism: at once expanding their appeal and driving them underground, where they are no longer subject to public scrutiny and control. At the moment of its demise affirmative action has returned with a vengeance. Those who turned out for Thursday’s protest were either too young or too unsophisticated to notice that they were getting wet for nothing.

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In 1996, the voters of California overwhelmingly recognized that affirmative action is an unfair and inappropriate system. In so doing, they were simply reaffirming the principles of the 1964 Civil Rights Act. According to Proposition 209, "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting." Proposition 209 simply amounts to a reaffirmation of the state’s commitment to provide all citizens with equal rights and opportunity under the law, principles which are central both to our culture and to our constitution. On the face of it, these are uncontroversial sentiments.

So what did those who turned out on Thursday imagine they were protesting? Supporters of affirmative action typically offer one of two arguments for the policy. According to the first and most common of these, affirmative action is necessary to make up for the history of racial and gender discrimination in America’s public institutions. In order to do this, supporters of affirmative action favor a system of race and gender-based preferences, usually aimed at achieving something like proportional representation in institutions via quotas and other types of preferences. The basic idea is that, in a state that is, say, 40% Asian, at least 40% of those who staff or are otherwise involved in the public institutions of that state should also be Asian.

The chief problem with this argument is that it is in conflict with the various ways in which Americans typically think of dessert. Take, for example, college admissions. At most colleges, the number of slots available to new students is less than the number of applicants. In order to decide who does and who does not get offered a place, college admissions committees consider a host of criteria. Principally, these criteria are aimed at determining the relative aptitude of applicants, whether by SAT scores, grade point averages, sample essays, or the written recommendations of high school instructors. In this way, those students who are admitted usually have the sense that they’ve earned their place. In colleges which practice affirmative action, however, qualified students — that is, students who have demonstrated that they meet the admissions criteria of the college — who happen to be white (or, increasingly, Asian) are regularly turned away in order that less qualified but more desirable minority students be admitted. This, according to the first argument for affirmative action, will have been done in order to make up for a history of discrimination. But it is anything but clear why the otherwise laudable desire to make up for past discrimination should be allowed to override present considerations of merit. For if racial and gender discrimination is wrong in general (and this, after all, is the cornerstone of the first argument for affirmative action) then it makes no sense to try to make up for past discrimination against one race or sex by present discrimination against another. To do so makes even less sense when one considers that few of the students affected by affirmative action policies were either the direct victims or the direct perpetrators of past discrimination. And it makes even less sense when one considers that many of those who stand to benefit from affirmative action are themselves either immigrants or the children of immigrants — that is, people who weren’t in America to be discriminated against in the first place. As Michael Lind has recently written on this last point, "Many countries have discriminated against immigrants in favor of native citizens ... to my knowledge, the United States, thanks to the system created in the 1970s and defended today by the Democratic Party, is the first government in history to engage in racial discrimination against some native citizens on behalf of some (but not all) immigrants."

The second argument typically offered in support of affirmative action is even weaker. This is that the state has an obligation to ensure equal opportunity for the disadvantaged. The state may indeed have such an obligation but, if so, affirmative action is not the way to honor it. By "disadvantaged", those who make this argument mean students who attended sub-standard schools and are thus less likely to gain admission to colleges when competing with students from better schools. Typically, such students will have grown up in poverty, been unable to afford private education, and so have had no choice but to attend the inadequate public schools of impoverished districts. To suggest that affirmative action is a reasonable or responsible way to provide equal opportunity to disadvantaged students, however, is to pretend that all minorities and women are poor and all white males, rich. Since everyone, even supporters of affirmative action, know that this is not true, one wonders that they make the argument at all. Though it might be seen as leading to affirmative action for the poor or some campaign to improve the quality of public education, this argument does not endorse the race and gender-based preferences that make up affirmative action.

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So I was glad to see affirmative action go at the University of California. Little did I suspect that, within a few years of its passing, it would be replaced by a yet more obnoxious system of preference: "diversity." The problem with the diversity-based initiatives which have gradually come to replace traditional affirmative action throughout California’s university and state bureaucracies is that they have all of the faults of traditional affirmative action while lacking its one virtue: transparency. Whatever might have been the flaws of affirmative action, its aims and stakes were clear. Traditional affirmative action aimed at something like proportional representation by race and sex in public institutions. It was, in this sense, never intended to be anything more than a temporary measure. The idea was that, once the desired representation of women and minorities had been attained, public institutions would return to a reliance on more standard criteria for selecting candidates; ideally, affirmative action had a definite end point. The other merit of affirmative action was that, as a policy, it was applied and policed by the state in full view of the public. Whether they opposed it or not, citizens knew that the state was discriminating in favor of certain groups and they knew how it was doing this. Should public opinion swing against affirmative action, as it did four years ago in California, the state would have no choice but to answer to it.

The diversity initiatives which serve as the University’s chief resource for recruiting minority students in post-209 California — collectively (and euphemistically) referred to as "outreach programs" — are neither temporary nor subject to public control. In 1998, the first year that affirmative action was not practiced at the 10 campuses of the University of California system, there was a noticeable drop in the admission of students from what is referred to, somewhat misleadingly, as "underrepresented minorities" (few point out that whites, too, are now "underrepresented minorities" at many of the University’s campuses). Among other things, the drop in minority admissions demonstrated the truth of what opponents of affirmative action had been arguing all along: that, under affirmative action, large numbers of qualified white and Asian students were denied places every year so that less qualified African-American and Latino students could have a place. But that is not what worried the administration. Rather, it was argued — by university administrators, faculty, and student demonstrators — that the drop in minority admissions compromised the quality of education to be had at the University of California by reducing the institution’s racial and ethnic diversity. This, of course, is nonsense. "Show me a college where most of the learning results from exposure to other students, and I’ll show you an institution that isn’t worth the tuition it charges," writes Roger Clegg in the Chronicle of Higher Education. Nevertheless, this was the argument of 209’s opponents and, more importantly, of the administration itself. Within months of 209’s passage, the University unveiled its far-reaching, multi-million dollar outreach program, the stated aim of which is to improve the chances for disadvantaged students to attend the University. To do this, the University actively recruits in impoverished school districts, offers Summer college prep courses to selected students, and — crucially — considers participation in such programs as a positive criterion in admission decisions. In this way, the administration claims, the interests of diversity are served without violating the provisions of Proposition 209.

In fact, the outreach programs have simply proven to be affirmative action by other means. This year, for the first time since the passage of the Proposition, the admission of applicants from underrepresented minorities to the University of California system has increased, actually surpassing the figures for 1997, the last year that the state practiced affirmative action. In large part, this has been due to the success of the outreach programs. Otherwise, the outreach programs have not lived up to their billing. By representing outreach as a voluntary effort to improve the chances of "disadvantaged" students to attend the University of California, university administrators and admissions committees have given themselves a free hand to carry on discriminating — in the interests of "diversity", of course — against "overrepresented" white and Asian students. The fact is, the University’s outreach program only reaches out to a certain type of student. And, contrary to the stated aims of its creators, this student is not first and foremost "disadvantaged" but rather African-American, or Latino, or whoever else the University decides to consider a legitimate victim of historical racism. That’s what this year’s sudden (and otherwise inexplicable) increase in underrepresented minority admissions means.

Outreach, then, is nothing other than a device for maintaining the pre-209 status quo, a way of breaking the law while not seeming to do so. In this respect, the passage of Proposition 209 has been a mixed blessing for its supporters. On the one hand, it has set a legal precedent for the rest of the nation: that public opinion recognizes affirmative action and other race-based preferences to be in violation of the equal protection guaranteed citizens under the Constitution. On the other hand, it has given proponents of race-based preferences an opportunity to conceive and implement new and increasingly elusive strategies for enforcing their vision of American society.

In several ways, Proposition 209 has made things worse, not better. Now that the days of state- sanctioned affirmative action are over, it has become considerably more difficult to oppose race-based preferences than it once was. As the University of California’s outreach program demonstrates, policies designed to increase the representation of "underrepresented minorities" at the expense of "overrepresented" ones can now be passed off as racially neutral initiatives to assist disadvantaged students and ensure diversity. Since few point out (perhaps for fear of being labeled "racist", an epithet notorious for its sticking power) that, in the University’s hands, "diversity" is little more than a code word for privileging African-American and Latino students vis a vis white and Asian ones, it seems unlikely that a legal challenge will be mounted against these programs any time soon. And, worst of all, diversity initiatives, unlike affirmative action, are not limited in their scope. As we have seen, the framers of affirmative action fundamentally intended it as a corrective measure. By the imposition of a system of quotas, it was hoped that the representation of women and minorities in public institutions would be brought in line with that of the population more generally; once that had been achieved, affirmative action would run out of reasons to exist. Diversity, by contrast, knows no bounds and this precisely because, in contrast with the contingent aims of affirmative action, public discourse is increasingly disposed to regard diversity as a good in itself. To that degree, university outreach progams represent a new and much more potent form of affirmative action, one that accomplishes all of the goals of the more traditional quota system without needing to justify itself. For the students who stood in the rain last Thursday shouting their disapproval of Proposition 209, though they did not know it, the battle had already been fought — and won.