EDLEY: One way to think about affirmative action is that it is needed as a tool to help remedy discrimination, this remedial concern. The facts demonstrate that there's still a lot of discrimination, the best social science evidence indicates that, more than most people appreciate, and frequently it's hard to detect and it's not the kind of thing you can rush to court and litigate every day. A second cause beyond remedying discrimination is to say that we're interested in diversity, that there are some institutions and some settings in which excellence, the effectiveness of your organization depends upon being more inclusive. If you're talking about a police department for example that's trying to do a good job providing security for a diverse community, law enforcement experts agree that the police force should to some extent reflect the diversity of the community it's trying to serve. A third argument that's sometimes raised.

I think of three basic models for justifying affirmative action. One is to try to remedy discrimination and prevent future discrimination. A second is to focus on diversity, on the need to be inclusive in order to achieve excellence in some particular organization. And a third is redistribution or reparations, if you will. I don't think that the third one is sufficiently compelling morally to justify affirmative action but some people do.

INTERVIEWER: An income redistribution plan, in other words, in a way.

EDLEY: Right. Here's the problem: we have on the one hand irrefutable social science evidence that a substantial amount -- by no means all-- but a substantial amount of the current social and economic disadvantage of blacks is attributable to our history. If you look at wealth figures where median black family wealth is only about 8% that of the median wealth of white families, that's a measure of our inherited disadvantage. On the other hand we also have a moral feeling that the sins of the fathers should not be visited upon the sons, that we should not, as Justice Scalia has put it, have a debtor race and a creditor race.

So my sense is that the moral claim for reparations is in fact very problematic and ultimately would fail in the American body politic. That's not to say that there aren't important social welfare redistributional claims. We believe in economic justice as well as racial justice but I simply think that the reparations justification for affirmative action is weak. But that's a judgment call. On the other hand, the claim that affirmative action is needed as an effective measure to combat discrimination seems quite powerful to me. Discrimination is still widespread. The best social science evidence confirms that over and over again. It was very compelling when we went through it with the president.

INTERVIEWER: Can you recall examples of things that struck you that you just hadn't realized the depth of before?

EDLEY: Well, it wasn't news to me but there has long been research that uses statistical econometric techniques to look at disparities in wage levels and so forth and try to explain it as carefully as possible looking at a variety of factors, education, income, class, etc. The unexplained residual is attributable to discrimination.

The most compelling evidence these days, it seems to me, comes not from the statistical studies of disparity but instead from looking at testers, where matched pairs of individuals, one white, one minority, are sent to apply for a job that's been advertised or to try to rent an apartment that's been advertised, and the testing evidence shows over and over and over again that in areas all over the country discrimination is widespread. 30-40% of minority testers trying to rent an apartment experienced some form of discrimination. 25% of minority testers experienced some form of employment discrimination. And the difficulty is that if I try to rent an apartment and the real estate says oh, I'm sorry, we just let it go, nothing's available, I walk away, I shrug my shoulders, I have no way of knowing whether I'm a victim of discrimination. The tester evidence lets us measure discrimination directly and the evidence is alarmingly clear.

INTERVIEWER: And then, the first model, that discrimination?

EDLEY: So because discrimination remains so widespread and because it frequently is difficult to detect you can't say that it's a problem of long ago history nor can you say it's a problem that simple enforcement of the laws -- take it to court -- it won't work. If you can't really detect it because it's subtle then we need other measures. The value of affirmative action is that it creates a tool whereby we can lean against those simple prejudices and preferences in the system. The value of affirmative action is that it gives us a tool that allows us voluntarily to tilt againstthe preferences in the system, preferring people who are like us. When you add up preferences of that sort the result is widespread denial of opportunity.

INTERVIEWER: One of the things that's happened over the last 30 years of pursuing affirmative action is the black middle class has doubled but the number of blacks in poverty has also increased. In fact, the numbers of blacks living in poverty has increased so fast that as a whole the black community looks like we haven't moved at all since 1965. Is that because affirmative action hasn't worked?

EDLEY: One of the problems in the debate is that critics of affirmative action point to problems ranging from crime to unwed parenthood to you name it. Affirmative action is not the cause of these problems and affirmative action is not the solution to these problems. There's a complicated opportunity agenda in America and affirmative action is simply one tool among many.......

INTERVIEWER: Such as?

EDLEY: World class education for all of our children would be my number one priority. Does that mean that affirmative action is unimportant? No. It simply means that we have to do several things at the same time in order to make the progress that's needed.

INTERVIEWER: The fact that you have a black face doesn't mean that you're going to get the schools fixed. It just means that you've got a black person there. How do you balance the need for policy adjustments with what's seen as a quota mentality?

EDLEY: The African-American community is diverse, there's no question about it. You've got Clarence Thomas on the one hand, you've got my friend Lani Guinier on the other hand. The difference is dramatic. The fact remains, though, that because race continues to be so salient there are strong correlations and I believe that most blacks sitting in the councils of policy will indeed take some pains to do what they think is going to be in the best interest of minority communities and people will differ about what that is.

The question is, who is shaping the agenda and whose policy preferences are involved when government sits down to make a decision? Or when a corporation is sitting down to make decisions about its leadership or about its strategy or about its investment, who is in the room helping to make those decisions? One of the interesting things about the diversity of the community, Glenn Loury who's been on many of these issues pointed out recently that one of the benefits of affirmative action is that even if there are ultra-conservative blacks who are present, from his point of view that's good for the students because he wants his students to see that in fact there's diversity in the African-American, that not everybody is progressive but indeed there are many people who are conservative and that demonstrating that diversity is absolutely critical.

INTERVIEWER: Do you agree with that?

EDLEY: I absolutely agree with that. We have competing goals in mind. If you take the issue of picking federal judges or picking faculty members you're trying to accomplish two things. Well, many things. You're trying to accomplish at least two things. One is we do affirmative action in part to get strength from diversity. I believe that Harvard Law School is a better law school because of the diversity of the faculty and the diversity of the students. What happens in my classroom is better, is enriched by the diversity among the students.

The same is true of the federal court system. We want a diverse set of viewpoints in the federal judiciary. We don't want it all drawn from one class of society. We don't want it all with one social perspective. Things get complicated when there's also a desire for representatives. When you take a Supreme Court with only nine slots then the issue of representativeness may come in tension with the issue of inclusion. George Bush may have thought that he was putting a representative of the African-American community on the court. I have no doubt that 15%, maybe 20% of blacks agree with Clarence Thomas' views, but that doesn't make him representative. It makes him an example, but it doesn't make him representative.

INTERVIEWER: So his presence there then is a good thing in one way and not a good thing if your politics don't agree with him, in other words?

EDLEY: Right. His presence is both good and bad. On balance, I think it's disastrous.

INTERVIEWER: One of the reviewers of your book asked whether the net sum of your argument was that diversity trumps justice in the current debate. Whether or not it's fair that a black gets a job instead of a white person even if they're not as qualified as the white person.

EDLEY: No, that's goofy. The whole point of the book is to question, what is fairness? How do you decide what is fair? The way I put the question to the president was this: do you believe that there is a moral cost to making decisions about people based on immutable characteristics like race or gender? Now some people think that there is a moral cost and it is so great that we should never be willing to pay it. That's the color blind view. Other people believe that there's no special moral cost. It's no different from making decisions about allocating benefits and burdens on the basis of income or geography or height. That kind of leads to a reparations view. Let's just treat affirmative action like any other tool of redistribution.

I think that's problematic because race is different. Our history teaches that there's a different moral quality, it seems to me. I come down in the middle and the president came down in the middle. There is a moral cost to making decisions about people based on color, but it's a cost we should be willing to pay in at least some circumstances and the question is, what are those circumstances? One is the case for remedying discrimination and there's a big argument about how you define and measure and detect discrimination, but let's just put that to one side. A second is that at least in some institutions inclusion or diversity is so important a value, so important an interest that we should be willing to pay the moral cost of making decisions based on color or gender in order to get those benefits. I think a police department is a good example. I think a college is a good example where the very quality of excellence in the institution depends upon being inclusive.

INTERVIEWER: The slogan that you came up with at the end of the six months studying affirmative action was - "Mend It, Don't End It" What's the mending that needs to be done?

EDLEY: Affirmative action has been good for the country. But that doesn't mean there haven't been abuses. The principle one that we were concerned about is situations in which people cut corners, that in an effort to try to achieve a flexible goal they hire by the numbers or they admit college students by the numbers just to hit something that has become a de facto quota instead of doing affirmative action the right way, which requires a careful balancing and consideration of multiple factors.

So one area in which it needs mending is to make sure that those abuses, which by the way are not nearly as common as critics would indicate. The best evidence is that kind of reverse discrimination that's illegal is quite rare. But still, that's a form of abuse. Another is the issue of unnecessary inflexibility. There were, for example, in some of the government contracting programs mechanisms that simply too rigidly excluded participation by small white-owned businesses when in fact a more flexible way could be designed.

INTERVIEWER: So those were two things that needed to be--

EDLEY: Well, a third issue is the Supreme Court is now clear that affirmative action efforts by government have to be carefully justified and narrowly tailored. One element of that is making sure that you've done your homework to really identify that there is a substantial numerical disparity.

INTERVIEWER: The way this looks to most of white America is that you're making the sons pay for the sins of the father. What's the counter-argument to somebody in South Boston who feels like my father was a policeman, my grandfather was a policeman, my great-grandfather was policeman and I'm not a cop because some guy from Roxbury needed to get my job so that they could say they had a diverse police force.

EDLEY: The overwhelming amount of opportunity that's out there right now is still in the sectors going to white folks and to a substantial extent going to white males. Whether you're talking about police departments or judgeships or government contracts, the notion that a white male is endangered or can't get ahead is belied by the facts so there's a certain amount of hysteria and that hysteria of course is one cost of affirmative action, but that doesn't mean we should retreat, that means we should remedy the hysteria.

INTERVIEWER: One of the constants that comes up in this debate is the content of our character and not the color of our skin argument. One of the things Martin Luther King was moving towards at the end of his life was that class was as important as race - that the movement was going to have to include poor whites who had also been left out as well as poor blacks.

EDLEY: Two different things. The content of our character line from Martin Luther King must be read in the context of other statements in which he talked about the importance of color conscious, affirmative action style remedies. At that point in his thinking he was quite clear about the need for America to take affirmative steps in which race was a consideration. No doubt about it.

As you move towards the Poor People's Campaign and he focused on the importance of cross-racial, class-based alliances there's no doubt that he was pointing to our future, where America's future must be. But I think that has to be seen in context. At that point in American history, remember, we also had a war on poverty in the works. The notion that the suffering and the deprivations of African-Americans might best be ameliorated by joining common cause with poor white folks made a lot of political sense at that point in the 60s because indeed the anti-poverty movement was in full swing.

Of course, as history unfolded, the anti-poverty movement lost its momentum. Today, last year, the slogan on affirmative action that the president embraced was mend it, don't end it. The slogan on welfare was we want to end welfare as we know it. He could have chosen to say the same thing about affirmative action but he didn't. I'm here to tell you that both of these patients, the anti-poverty agenda and the civil rights agenda, are in intensive care but the vital signs on anti-poverty are probably even bleaker than the vital signs on civil rights.

I think that moving to class based affirmative action and excluding, eliminating race based affirmative action would be a disaster. I'm in favor of class based affirmative action. Every selective university that I know of, for example, does it. They view that kind of diversity as important to their mission and helpful to the educational enterprise. So do I.

The point is that race is an additional and separable factor in diversity. I said to the President for example during the review, look, is Ron Brown less effective, less of a contributor on your cabinet because he grew up comfortably middle class in Harlem rather than in the housing projects? Am I not valuable to you as an advisor because I grew up middle class rather than in the housing projects? There's no question that my perspective would be somewhat different if I had grown up dirt poor, but on the other hand, I do think I still bring something to the table despite my middle-class upbringing.

Now, in an admissions context, obviously somebody who has multiple attributes of diversity that are important to the institution is even more attractive. And whether that's race or class or musicianship or athleticism-- all of these elements of diversity are important and factor into the balance.