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Affirmative Racism
Left-liberal opponents of the Senate’s confirmation of Judge Samuel Alito as the next associate justice of the U.S. Supreme Court have argued that it would mean, among other things, “the end of affirmative action.” What they’re referring to as “affirmative action” are programs, adopted by the government or governmental entities (such as state colleges or universities), that give preferences, in hiring or in admissions, to some persons because they’re members of some preferred group, usually a racial or ethnic “minority” (i.e., non-Caucasian) group such as black (African-American), Hispanic, Asian, American Indian (Native American), etc. (Opponents of such programs frequently call them, more honestly, “race-preference” programs and note that, in effect, they constitute “reverse discrimination,” that is, discrimination against persons who happen to be white or male in favor of non-white or female persons.) What left-liberals believe is that as a Supreme Court justice, Judge Alito would be jurisprudentially more conservative than his predecessor, Justice Sandra Day O’Connor, and would provide the critical fifth vote on the Court against the constitutionality of such affirmative action programs. I have two responses to this criticism. First, as I have argued in previous entries, the Senate’s confirmation power is limited under the Constitution; and confined to its legitimate bounds, the Senate ought to vote to confirm any candidate who, like Judge Alito, is clearly well-qualified for office. A nominee’s judicial philosophy, let alone his views on particular issues likely to come before the court, is simply irrelevant to the Senate’s legitimate confirmation power. Second, even if we assume that left-liberals are right in predicting that Alito would vote differently in affirmative-action cases than did Justice O’Connor – and that his vote would furnish the critical fifth vote against such programs – would this be a bad result? (Democrats speak ominously about “the end of affirmative action” the same way they speak ominously about the end of other programs, dear to their bleeding hearts – programs such as Social Security, minimum wage laws or other labor laws, environmental regulations, and the like -- which, arguably, all are programs that ought to be abolished because they contradict fundamental principles of American law and deprive Americans of their legitimate rights and freedom.) Would ending affirmative-action programs be so bad? My answer is, emphatically, NO! The “end of affirmative action” would be something to applaud, for affirmative-action programs are bad: they are unconstitutional and illegal (they violate both the Equal Protection Clause of the Constitution and federal civil-rights laws), they are immoral because they are racist, and therefore, among other bad consequences, harm the very persons they are supposed to help because they perpetuate racism in American society.
History: The Devolution of Affirmative-Action into Race-Preference Programs
The term “affirmative action” was first used in civil rights legislation in 1961, in President John F. Kennedy’s Executive Order 10925, which ordered “affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” A subsequent, and better-known, executive order, EO 11246, repeated much of this verbatim (replacing “creed” with “religion,” and adding “sex” as a new category). Then the Civil Rights Act of 1964 empowered courts to “order such affirmative action as may be appropriate” to deal with discriminatory practices. No specific policy was meant; “affirmative action,” as used in the early 1960s, generally referred to a range of various activities designed to remedy demonstrable cases of bias in hiring or promotion. These might include, for example, federal contactors posting notices or making announcements of their nondiscrimination obligation, or the advertising of job openings designed to help broaden the pool of potential applicants to include members of minority groups or others believed “underrepresented” in particular jobs or fields. The Civil Rights Act of 1964 itself explicitly disavowed preferential treatment based on race or other group identity: “Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership of classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.”
Public Law 88-352, Title VII, § 703j (emphasis added). Thus federal non-discrimination law was meant to prohibit discrimination, to open opportunities to all persons regardless of race, etc., and not to sanction “reverse discrimination,” against certain persons because of their race, etc. Nevertheless, “this section of the Civil Rights Act has been, and continues to be, massively violated – in the name of civil rights,” as Steven Yates argues in his book Civil Wrongs: What Went Wrong with Affirmative Action (1994). As Yates and other scholars have noted, the original meaning of “affirmative action” – and the original intent of federal civil-rights legislation – was transformed by political activists in the late 1960s and 1970s into something quite different from equal opportunity for all individuals, regardless of race: instead, it became what “affirmative action” generally means today, race-conscious programs that classify and treat individuals differently because of their race (or other group identity). As historian Herman Belz summarizes it, in his book Equality Transformed: A Quarter-Century of Affirmative Action (1991): “Under the pressure of direct action political protest and social upheaval in the late 1960s, federal courts and the civil rights bureaucracy abandoned [the original policy of color-blind equal opportunity]. They fashioned an administrative-judicial enforcement scheme that forced employers to give preferential treatment to racial and ethnic minorities under a new theory of discrimination based on the concepts of group rights and equality of result.” How this transformation occurred is a long and complicated story, but certain key developments can be identified. The President’s Committee on Equal Employment Opportunity (PCEEO), created under JFK’s order to enforce the affirmative-action obligation, emphasized group-based preferential hiring pegged to statistical patterns of minority “under-representation.” Notwithstanding the anti-preference clause in the 1964 Act, civil-rights activists argued that race-conscious or preferential policies had to be adopted in order to counteract both the effects of past discrimination and the remaining tendencies by white male employers to discriminate in “subtle” ways. (Some advocates of preferential policies, frankly admitting that this constituted reverse discrimination, nevertheless maintained it was justified because of the “advantages” and “privileges” that white males have long had.) In the late 1960s, federal agencies began to equate discrimination with the doctrine of “disparate impact.” By 1969, quotas were established in the construction industry by the Department of Labor regulations, which set “goals” and “timetables” for achieving greater representation of minorities “under-utilized” in various job categories. (Bureaucrats assumed that any statistical disparity between minority employment in these categories and their overall percentage of the population was “under-utilization.”) In 1970 President Nixon’s Office of Federal Contract Compliance issued an order extending similar provisions to other occupations. As a result, the meaning of the term discrimination expanded until it meant simply “a lack of government-approved statistical parity,” as Steven Yates puts it. In 1971, the Supreme Court gave the “disparate impact” doctrine legal sanction in Griggs v. Duke Power Co. And in 1972 the Department of Health, Education, and Welfare (HEW, the predecessor to today’s Department of Education) issued a set of guidelines for universities, instructing them that to comply with nondiscrimination legislation they must make “efforts to recruit, employ and promote members of groups formerly excluded, even if that exclusion cannot be traced to particular discriminatory actions on the part of the employer” (emphasis added). As a result of these developments, the anti-preference clause in the Civil Rights Act of 1964 was, in the words of Steven Yates, “effectively rendered null and void without being openly repealed.” He adds, “An era of Orwellian evasion and doublespeak began.” (For more on this history, see Yates’ book, pp. xvii-xxi; Belz’s book, pp. 7-41. See also Clint Bolick’s book The Affirmative Action Fraud (1996).) The horrible effects of affirmative action have been aptly described by Anne Wortham, a sociology professor at Illinois State University (who happens to be a black woman), in her forward to Professor Yates’ book: “It [affirmative action] has not benefited those for whom it was intended. It compromises standards of excellence throughout the economy and the educational system. It undermines the reliance on merit as the standard for college admission, hiring and promoting employees, and awarding contracts. It contributes to the creation of a culture of mediocrity in which efforts by individual minority group members to succeed on their own merits are penalized. It reinforces the stereotype of minority group members as people unable to make it on their own. It adds fuel to racial tensions by incurring the resentment of those not in protected groups. It corrupts the language of public discourse by politicizing such terms as minority, equal opportunity, discrimination, racism, sexism, so that they mean whatever anybody wants them to mean. Its set-aside programs for business enterprises run by minorities, women, and the disabled are rife with corruption and fraud. It fosters anti-intellectual scholarship that rejects standards of objectivity, dispassionate analysis, analytical clarity, and the search for universal intellectual and moral truths. Indeed, it relies on such scholarship to promote its ideological rationalization.”
(“Foreward” to Civil Wrongs, pp. xi-xii.) That these are the consequences of affirmative action is not surprising, given its philosophical underpinnings, Wortham adds, summarizing the thesis of Yates’ book. Affirmative action didn’t simply “go wrong”; it “could not and never can go right,” for it is wrong, because it is based on false premises: collectivism, socio-cultural determinism, the psychology of victimization, intergroup egalitarianism, and elitism – all together, what Yates calls “the philosophy of social engineering,” which mistakenly assumes that injustice can be remedied by large-scale social planning (the “fatal conceit” of social engineers of all types). Affirmative action is also wrong because it is unjust: “it violates the equal protection clause of the Fourteenth Amendment of the Constitution; it violates the basic right of individuals to their own lives and the products of their own labor.” (Ibid., p. xii.) Among its other evils, affirmative action reinforces and perpetuates a view of human beings that ignores their individuality and instead treats them as members of groups. In other words, it is collectivist – and it is, in fact, that form of collectivism that is properly called racism.
Racism, Properly Understood
Perhaps the best definition of racism was given by philosopher Ayn Rand, who described it as “the notion of ascribing moral, social, or political significance to a man’s genetic lineage – the notion that a man’s intellectual and characterological traits are produced and transmitted by his internal body chemistry.” Rand called racism “the lowest, most crudely primitive form of collectivism,” for it means, in practice, that “a man is to be judged, not by his own character and actions, but by the character and actions of a collective of ancestors.” (Rand, “Racism,” in The Virtue of Selfishness (1964)) The evil of racism, as with other forms of collectivism, is its denial of individualism. As Rand noted, racism contradicts the attribute that distinguishes human beings from all other living species: their rational faculty, their ability to reason and to make choices. Rather than treating each person as a unique being, responsible for the development of his or her own character, racism regards each person in terms of the racial group to which he or she belongs. Thus does racism deny the reality of human nature, the fact that human beings are inherently unique individuals, no one the same as anyone else. The group identities that racism fosters are fictitious constructs – at best, these stereotypes are mere generalizations; worse, they are the roots of bigotry and intolerance – fictitious constructs that distort the unique attribute of human beings, their individuality. Collectivism generally, in Rand’s words, “holds that the individual has no rights, that his life and work belong to the group (to `society,’ to the tribe, the state, the nation) and that the group may sacrifice him at its own whim to its own interests.” Racism, as a form of collectivism, regards individuals only as members of the racial group to which they belong or are presumed to belong – or, as some people put it, colloquially, “the blood” from which they come. Rand gave the following as all examples of racism: “the respectable family that supports worthless relatives or covers up their crimes in order to `protect the family name’ (as if the moral stature of one man could be damaged by the actions of another),” “the bum who boasts that his great-grandfather was an empire-builder, or the small-town spinster who boasts that her maternal great-uncle was a state senator,” and “the parents who search genealogical trees in order to evaluate their prospective sons-in-law.” In its most benign form, racism results in misjudgments about the character of individuals, often with tragic results for both the racist and those whom he misjudges. In its most evil form, when the bigotry that racism engenders is coupled with hatred and with force or violence, racism can lead to genocide: for example, in the 16th century, the slaughter of the Huguenots by French Catholics or the virtual extermination of the Aztec and Inca empires by Spanish conquistadors; in the 18th- and 19th- century Indian wars in North America, the massacres of both whites and Native Americans; during World War II, the Holocaust in Nazi Germany (whose victims included not only millions of Jews but also gypsies and homosexuals – those groups that the Nazi racists regard as “inferior”); and in modern times, the victims (whether Christian or Muslim) of the civil wars in the former Yugoslavia or the civil wars that rage in many African countries today. Noting that “modern racists attempt to prove the superiority or inferiority of a given race by the historical achievements of some of its members,” Rand also wrote that racism has “only one psychological root” – whether it’s the superiority or the inferiority of any given race that he alleges – “the racist’s sense of his own inferiority.” “The overwhelming majority of racists are men who have earned no sense of personal identity, who can claim no individual achievement or distinction, and who seek the illusion of a `tribal self-esteem’ by alleging the inferiority of some other tribe.” To the examples Rand cites – German Nazis, white Southern racists – one might also add, for the same reason, both modern white supremacists (neo-Nazis and the so-called “White Power” movement) as well as black racists, such as Stokely Carmichael’s Black Power movement in the late 1960s or Louis Farrakhan and his black Muslim followers today. Because racism is just a form of collectivism, there is only one antidote to racism: individualism. As Rand explains, “Individualism regards man – every man – as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights – and that a group, as such, has no rights other than the individual rights of its members.”
Noting that, historically, racism and economic freedom have stood in reverse correlation to one another – in other words, that racism has been strongest in the most controlled economies (such as Russia and Germany) and weakest in the more capitalistic countries (like Britain or the U.S.), Rand added that capitalism – the politico-economic system of a free market – is the “only system that functions in a way which rewards rationality and penalizes all forms of irrationality, including racism”: “It is not a man’s ancestors or relatives or genes or body chemistry that count in a free market, but only one human attribute: productive ability. It is by his own individual ability and ambition that capitalism judges a man and rewards him accordingly.”
(“Racism,” in The Virtue of Selfishness, pp. 150-51.) Walter E. Williams, the economist at George Mason University (who happens to be black), has made a similar point, in noting that black Americans particularly have benefited far more from the operation of the free market than they have from government programs, many of which historically have hurt black persons and members of other minority groups. Citing practices such as licensing laws, minimum-wage laws (including the federal New Deal-era Davis-Bacon Act), and others, Professor Williams observes, “Literally hundreds of regulations block black upward mobility and are supported by black politicians and civil rights organizations.” He adds, “It’s hard for me to decide whether these people are simply uninformed or pursuing their own personal agendas.” He concludes, “Broadening opportunities, not only for blacks but for all Americans, requires efforts to repeal laws written in the interests of incumbents that have the effect of keeping people out who can be generally described as outsiders, discriminated against, and lacking political clout.” (“Free Markets and Blacks,” Apr. 5, 1995, in Williams, More Liberty Means Less Government (1999), pp. 42-43.) Both Rand, in her “Racism” essay, and Professor Williams, in many of his writings, have shown how the black civil-rights movement in the United States, by the 1960s, sadly had moved away from a fight against government-enforced discrimination (so-called “Jim Crow” laws, forced segregation, and the like) – a fight for individual freedom – and instead began to call for more government controls. Rather than protecting every person’s right to individuality, regardless of skin color or genetic heritage, many modern leaders in the so-called “civil rights” movement instead have embraced various programs – including race-preference affirmative action mandates – in a misguided effort to use the coercive power of government to confer special privileges on black persons akin to the special privileges that racist laws in the past had conferred on white persons: “Instead of fighting against racial discrimination, they are demanding that racial discrimination be legalized and enforced. Instead of fighting against racism, they are demanding the establishment of racial quotas. Instead of fighting for `color-blindness’ in social and economic issues, they are proclaiming that `color-blindness’ is evil and that `color’ should be made a primary consideration. Instead of fighting for equal rights, they are demanding special race privileges.”
(Rand, “Racism,” p. 154.) Rand saw this unfortunate development as resulting from the growth of government in 20th-century America, as we moved away from the free-market capitalism system and toward the “mixed economy” of the modern regulatory/welfare state: “The growth of racism in a `mixed’ economy keeps step with the growth of government controls. A `mixed economy’ disintegrates a country into an institutionalized civil war of pressure groups, each fighting for legislative favors and special privileges at the expense of one another.”
Thus, as she saw it, civil-rights activists starting in the 1960s had joined this “blind, short-range power game played by various statist gangs,” and like the rest, was simply “intent on getting hold of a legislative gun for any special advantage of the immediate moment.” (Ibid., pp. 152-53.) Professor Williams has been even more blunt, calling “race hustlers” those political activists – both black and white – who claim to speak for the rights of black persons. He maintains, with ample historical evidence on his side, that the most pressing problems for “the black underclass” in America today – family breakdown, high illegitimacy rates, crime, and poor education – are not “the legacy of slavery,” not the results of racial discrimination, but rather the results of bad public policies, such as horrible urban public school systems. “The major problems for many blacks have nothing to do with racial discrimination.” (“Race Hustlers,” Dec. 24, 1997, in More Liberty, p. 24.) I am not trying to deny the reality of racial discrimination, which – like all other forms of bigotry based on persons’ race, ethnicity, sex, sexual orientation, or any other superficial or incidental characteristics – results from the irrationality at the root of racism. But by examining the true nature of racism (that it is a form of collectivism) and emphasizing its only true antidote (individualism), I am denying that the disease of racism can be “cured” by more racism. Racism cannot be legislated away, and all efforts to do so are bound not only to fail but to perpetuate the problem. As Rand wrote, “Racism is an evil, irrational and morally contemptible doctrine – but doctrines cannot be forbidden or prescribed by law.” (I also agree with Rand that not only is it wrong for government itself to discriminate on the basis of race – meaning that it is proper to forbid all discrimination in government-owned facilities and establishments -- it is also wrong for government to violate the right of private property by forbidding discrimination in privately owned establishments. Thus, I agree with her position that those provisions of the Civil Rights Act of 1964 that deal with private, rather than government, discrimination are a “gross infringement” of individual rights: “A man’s rights are not violated by a private individual’s refusal to deal with him. . . . Just as we have to protect a communist’s freedom of speech, even though his doctrines are evil, so we have to protect a racist’s right to the use and disposal of his own property. Private racism is not a legal, but a moral issue – and can be fought only by private means, such as economic boycott or social ostracism.” “Racism,” p. 156.) Thus, laws that penalize racism, whatever form they take – whether they mandate non-discrimination or “reverse discrimination,” or whether they punish so-called “hate speech” directly or indirectly, by adding penalties on violent crimes motivated by racial hatred or other invidious forms of bigotry – are not the solution to racism but are, in fact, further violations of individual rights. Proponents of affirmative action justify it with arguments that are, in fact, racist. The most common justification given today for racial preferences in college admissions or in hiring is the so-called “diversity” rationale – based on Justice Powell’s opinion in Bakke, the Supreme Court’s reverse-discrimination case from 1978 (discussed below). What affirmative-action proponents really advocate is the use of individuals as pawns in a game of social engineering – a game that harms not only the students who are the victims of “reverse discrimination” (white male students, generally) but also those students (whether members of “minority” racial/ethnic groups or females, etc.) who are supposed to benefit from the program. Rather than treating persons as unique individuals and judging them by relevant factors such as their intelligence or aptitude, their skills, or their character, the use of affirmative action to promote so-called “diversity” subordinates individuality to group stereotypes. Peter Wood, professor of sociology at Boston University, thoroughly critiques the notion in his book Diversity: The Invention of a Concept (2003). Writing about Justice Powell’s assertions in Bakke – that the goal of attaining “a diverse student body” is not only constitutionally permissible but also “of paramount importance” to fulfill the university’s mission of having a “robust exchange of ideas” – Wood identifies the unsubstantiated leaps of logic that underlie Powell’s thesis. “It requires us to assume that the diversity of ideas and their `robust exchange’ is promoted by stocking the classroom with people who are racially diverse.” The assumption that racial diversity equals intellectual diversity – what some people call “the `racial proxy’ argument” – is both unconvincing on its face and racist: “Knowing what color someone’s skin is tells us nothing certain about what the person thinks. One might depend on stereotypes to venture a guess, and some of these guesses might be highly probable. (For example, the odds are strong that an African-American who voted in the 2000 presidential election voted for Al Gore.) But do we really want to justify preferential college admissions by relying on racial stereotypes? That seems the unavoidable destination of Powell’s logic.”
When Powell further asserts that such “diversity” might help students in professional schools – like the medical school at issue in Bakke itself, or law schools – better serve “a heterogeneous population,” he has no evidence “nor even a mildly plausible argument” that physicians are better able to serve a given population of patients by studying in a medical school whose student body was designed to match that population’s demographic profile. In fact, Wood notes, “a great many successful physicians in the United States are immigrants from nations such as India in which the demographic profile of the medical schools they attended bears virtually no relation to the demographic profile of their American patients.” (Diversity, pp. 119-21.) Moreover, Wood adds, are we really sure we know what racial diversity is? Are there any objective standards for the kinds of racial classifications Powell had in mind? He points out how, on closer inspection, categories such as black, white, Asian, and Hispanic break down, distorting reality. “The label `Asian,’ for example, lumps together the immigrant hotel manager from Gujaret State in Western India, the Japanese-American business executive, and the Khmer-American fisherman. The label combines into one category people who speak completely unrelated languages . . . [or] who adhere to unrelated religions. . . . And the label further makes a spurious unity out of people who take their cultural and historical bearings from completely unrelated traditions. Western India, Japan and Cambodia were never joined in a single empire, never shared a single culture, and never even experienced similar forms of colonialism or Western contact.” Similarly, the term “Hispanic” jams into one category people of disparate origins and outlooks – for example, “an Anglophilic Andean professor, a Jewish Brazilian who works in banking, an Argentine poet, an aspiring screen writer whose parentage is part Puerto Rican and part French-Canadian, an Azorian janitor, a lawyer and school superintendent born in Cuba who is a dedicated opponent of bilingual education” – people without a common social background, physical appearance, or even a common language. “Such group identities may seem real enough to politicians trolling for votes and marketers looking for regularities in consumer behavior, but in fact they are shadowy formulations and deeply at odds with our cultural imperative to treat individuals as individuals, regardless of their ethnic backgrounds. And, increasingly, Americans seem to see themselves not as members of a single group, but as participants in several cultures.” (Diversity, pp. 24-25 [some emphasis added].) This notion of “diversity” is a form of Orwellian double-speak: like other terms used by George Orwell in his novel 1984 (for example, freedom when used to mean slavery) it perverts the real meaning of the word by turning it on its head. “Diversity,” properly speaking, should celebrate individuality: the uniqueness of each individual human being, the ability of each person as a free-thinking individual to transcend whatever influences (whether cultural or biological) that might give that person presumed identity as a member of a group (whether racial, ethnic, religious, sexual, etc.). Instead, it seems, the proponents of “diversity” in this peculiar sense – people who use race as a proxy for thought – do not truly value real diversity: in college admissions, for example, the only form of diversity that really counts in meeting the rationale offered by Justice Powell, intellectual or ideological diversity. Rather, their own arguments for racial diversity assume that all persons of a particular racial group think alike – which is stereotyping at its worst. That is why “diversity,” in this peculiar sense, is in fact an invidious form of racial discrimination, or racism: it relies on stereotyping that disregards individuality and real diversity.
Affirmative Action before the Supreme Court
The Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment guarantees all persons “the equal protection of the laws.” (The Fourteenth Amendment’s clause prohibits state governments from denying equal protection, and the Supreme Court has interpreted the Due Process Clause of the Fifth Amendment to apply the same prohibition against the federal government.) It should be emphasized that the Equal Protection Clause, like other provisions in the Constitution, is a prohibition on government; it does not guarantee equality per se, but only, as the text explicitly says, “equal protection of the laws.” As courts have interpreted it, it does not even require government to treat all persons equally – that is, literally to treat everyone alike, as equal individuals – but only not to deny them “the equal protection of the laws.” Nevertheless, in its infamous decision in Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana law mandating racial segregation in railroad cars, under the theory that the law applied equally to all persons, black and white persons alike. In a famous dissenting opinion, however, Justice John Marshall Harlan vigorously disagreed. Justice Harlan regarded the very act of government classifying people by race to be a violation of the Equal Protection Clause. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” he wrote. “In respect of civil rights, all citizens are equal before the law. . . . The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Justice Harlan’s concept of a “color-blind” Constitution was far ahead of his time. His view of the Equal Protection Clause was remarkably progressive, in the best sense of the word; he transcended the popular prejudices of his time – and late-19th and early-20th century Americans generally tended to be highly race-conscious – and instead embraced a radical individualist outlook, seeing all persons, regardless of their skin color, as individuals entitled under the law to equal rights and freedom. To require railroad companies to classify persons according to their race and to segregate their passengers in separate cars according to race – prohibiting a light-skinned mulatto man like Homer Plessy, whom the law classified as “colored,” from riding in a “whites-only” railroad car, as he wished – was, as Harlan saw it, a denial of his constitutional rights under the Equal Protection Clause. More than a half-century later, when the Court ruled segregated schools to be unconstitutional in Brown v. Board of Education (1954), Harlan’s concept of a “color-blind” Constitution was still too radical for most of the justices. Knowing how controversial a Court decision overturning school segregation would be, especially in the South, Chief Justice Earl Warren (an Eisenhower appointee whose background was political – he was the former governor of California and had no prior judicial experience) achieved unanimity on the Court by narrowing the scope of its decision to public elementary and secondary schools. Brown did not find all segregation laws to be unconstitutional, nor did it overrule Plessy; Warren’s opinion carefully limited its scope to public schools, concluding “that in the field of public education the doctrine of `separate but equal’ has no place” because “separate educational facilities are inherently unequal.” It was Warren’s quest for a unanimous opinion that explains the most controversial part of the Court’s decision, to this day: the shaky reasoning – based on dubious psychological studies of the impact segregated schools had on black schoolchildren – on which Warren’s opinion relied in support of this factual finding. State segregation laws generally did come to an end, but not directly as the result of any Court decision. The Civil Rights Act of 1964, in its Title II, prohibited business establishments that served the public (places such as hotels, restaurants, movie theaters, and sports arenas) from discriminating or segregating their customers on the ground of race, color, religion, or national origin. Other provisions of the Act prohibited discrimination “under any program or activity receiving Federal financial assistance” and also prohibited discrimination in employment on the basis of sex as well as race, color, religion, or national origin. When the constitutionality of the Act was challenged, the Supreme Court upheld its provisions regulating businesses and employers under the Court’s broad view of Congress’s powers to regulate interstate commerce. (As critics of the Civil Rights Act have pointed out since the Congressional debate in the mid-1960s, those portions of the law really are unconstitutional: they exceed Congress’s legitimate authority under the Commerce Clause, which ought not to be interpreted as the unlimited power the Court has allowed it, and they deprive the owners of private businesses of their right to discriminate in their choice of customers or employees. Freedom to discriminate, even on the basis of race – however despicable and irrational such racism is – ought to be part of the fundamental right to liberty protected by the Constitution; no law ought to compel unwilling persons to deal with one another. When it comes to the activities of government itself, however, the Constitution itself prohibits racial discrimination, under Justice Harlan’s broad understanding of the Equal Protection Clause as mandating “color-blindness.” Thus, those provisions of the Civil Rights Act that prohibit government itself, or programs funded by the government, from discriminating on the basis of race are indeed constitutional, under Congress’s own obligation to guarantee equal protection or its power, under Section 5 of the Fourteenth Amendment, to enforce the mandate upon the states.) In the modern era, when considering either federal or state laws challenged under the Equal Protection Clause, the Supreme Court has subjected the laws to “strict scrutiny” if they discriminate on the basis of race. When it comes to sex-based discrimination, however, a majority of the justices could not agree on application of the strict-scrutiny standard; therefore, in a group of decisions from the 1970s (chiefly, Frontiero v. Richardson (1973) and Craig v. Boren (1976)), the Court applied a standard of intermediate scrutiny. All other forms of discrimination under law are scrutinized under the Court’s minimal “rational basis” standard of review. What all this means is that, contrary to the explicit language of the Equal Protection Clause, the Supreme Court has not required government to afford all persons “the equal protection of the laws” literally; rather, the Court has fashioned artificial standards under which it has permitted government to discriminate, to varying degrees. If laws discriminate on the basis of race, they require a “compelling governmental interest” in order to be valid; if they discriminate on the basis of sex, however, they require only that the gender-based difference be “substantially related to achievement” of a legitimate government objective; and if they discriminate on other grounds, they require only some “rational” justification. Thus, despite the text of the Constitution, the Court has permitted government to deny persons equality under the law. The first major Supreme Court decision to consider race-preference “affirmative action” programs was the famous case, Regents of the University of California v. Bakke (1978). That case involved the affirmative-action program established by the medical school at the University of California at Davis, which set aside a fixed number of places for members of specified minority groups. Mr. Bakke, who was white, challenged the UC-Davis quota system, arguing that by admitting less-qualified minority students, it violated his rights under both federal civil-rights law and under the Equal Protection Clause (as UC-Davis was a state school). The Court divided evenly, with four “liberal” justices OKing the affirmative-action program as a “benign” form of discrimination that need not pass strict scrutiny but with four “conservative” justices finding the program illegal and unconstitutional because, as overt discrimination based on race, it did not pass muster under the strict scrutiny standard. In Bakke the Court held that the UC-Davis program was unconstitutional, but it failed to kill affirmative-action programs because it gave college administrators some “wriggle-room” to get around the ruling if they modified their programs in certain ways. This compromise resulted from the opinion of one of the justices, Justice Lewis Powell, who was the critical “swing vote” in this case. Powell agreed with the conservative justices that the UC-Davis medical school’s admissions system overtly discriminated on the basis of race or ethnicity and therefore was “inherently suspect” and subject to review under “the most exacting judicial examination.” He further found that that under the strict scrutiny standard, the school had failed to sustain its burden to show the necessity of discriminating on the basis of race. “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids,” wrote Powell, thus providing the critical 5th vote needed for the majority of the Court to find the quota system unconstitutional. But Powell did not stop there. Although he joined the four conservative justices in rejecting the four liberal justices’ notion of affirmative action as “benign” discrimination, he nevertheless sided with the liberals in finding a “constitutionally permissible” rationale for a state school to take race into account in admissions. That rationale was, in Powell’s words, “the attainment of a diverse student body.” To achieve that goal, Powell opined, an admissions program could take race or ethnic background into account by deeming it “a `plus’ in a particular applicant’s file,” so long as it did not “insulate the individual from comparison with all other candidates for available seats.” In other words, according to Powell, schools could not use a quota system – reserving a set number of spaces for white students, black students, Hispanic students, or Asian students – but could take the race of individual students into account, treating membership in certain preferred groups a “plus” in certain students’ files, for purposes of creating a racially “diverse” student body. The left-liberal justices in Bakke were guilty of judicial activism in ignoring the plain command of both the Equal Protection Clause and the federal Civil Rights Act, that states may not discriminate on the basis of race, because they approved of affirmative-action programs, on policy grounds, as a way of ameliorating past racial discrimination, expanding opportunities for minority students, creating a more “diverse” student body, or whatever rationale the proponents of affirmative-action programs could dream up to justify the programs’ overt racism. Similarly, Justice Powell’s compromise position was activist in that he, too, decided the case not according to objective principles of law – the Court’s own articulated standards for Equal Protection review – but rather according to his policy preferences, namely, his naïve acceptance of the “diversity” rationale advanced by the lawyers for the University of California. Although he was speaking only for himself and not a majority of the Court, Powell’s opinion in Bakke – because it rationalized his “swing vote” – not only kept affirmative action alive but also articulated the new rationale that its proponents would use for the next 25 years: the “diversity” rationale, discussed in the previous section (and ably critiqued by Professor Wood in his book Diversity: The Invention of a Concept). That rationale not only gave affirmative action a new euphemism, but it also spawned a veritable cottage industry – such as the “diversity training” seminars that many schools or employers mandate for their staff, often in order to settle sex or racial discrimination lawsuits. (As Professor Wood also notes, these “diversity training” programs, in turn, typically push a particular worldview and are aimed at trying to convince participants of the rightness of that view: for example, that American society is a hierarchy in which whites oppress other groups, and that individuals participate in the perpetuation of this hierarchy by harboring hurtful stereotypes about the members of the oppressed groups.” Ibid., pp. 93-94. Ironically, as I’ve noted, such “diversity” training perpetuates the very stereotypes on which it bases its worldview.) By the 1990s changes in the membership of the Supreme Court also ended the close divisions among the justices of the Burger Court, creating a new (albeit fragile) “conservative” majority of justices on the Rehnquist Court who were, not surprisingly, skeptical of the constitutionality of affirmative-action programs. The majority of justices have held that any law classifying persons according to race must pass muster under the strict scrutiny standard and thus requires a showing of a compelling state interest to justify it. Thus, in Richmond v. J.A. Croson Co. (1989), when the Court considered another type of affirmative-action program – a “minority set-aside” program established by the city of Richmond Virginia that required certain proportions of government business be reserved for minority contractors (not only blacks but also Hispanics, women, Asians, Native Americans, and even Inuits!) – the majority of the justices found the program unconstitutional. Significantly, it was Justice Sandra Day O’Connor who wrote the opinion for the majority of the Court in Richmond v. Croson. The City of Richmond had attempted to justify its minority set-asides program by arguing that it was necessary to remedy past patterns of discrimination, such as the exclusion of black persons from skilled construction trade unions and training programs, which in turn resulted in a limited number of minority-owned firms. Rejecting this rationale, Justice O’Connor wrote, “An amorphous claim that there has been past discrimination in a particular industry cannot justify the use of an unyielding racial quota.” Noting that it would be “sheer speculation” how many minority firms there would be in Richmond “absent past societal discrimination,” she explained why, under the strict scrutiny standard, the City’s justification could not pass constitutional muster. The purpose of strict scrutiny “is to `smoke out’ illegitimate uses of race by assuring that the [government] is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen `fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype,” Justice O’Connor added. “To accept Richmond’s claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for `remedial relief’ for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. . . . We think such a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.” Several years later, when the Court considered a federal minority set-aside program in Adarand v. Pena (1995), the majority of justices again found such a quota program unconstitutional, under the strict-scrutiny standard. By the time of the Adarand decision, four new justices had been added to the Court: three liberals (Justice David Souter, nominated by the elder President Bush, and Justices Ruth Bader Ginsburg and Stephen Breyer, nominated by Bill Clinton) and one conservative, Justice Clarence Thomas (also nominated by the elder President Bush). Justice Thomas, who replaced his predecessor, Thurgood Marshall, as the lone black justice on the Court, wrote a separate opinion, concurring with the majority decision but going even farther in explicitly following Justice Harlan’s model of a “color-blind” Constitution. Justice Thomas eloquently explained his commitment to the color-blind principle of equality before the law: “I write . . . to express my disagreement with the premise . . . that there is a racial paternalism exception to the principle of equal protection. I believe that there is a `moral [and] constitutional equivalence’ . . . between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.”
More than any other justice on the Court, Justice Thomas – “himself the child of poverty and a descendant of the freedman,” as Jim Bond aptly describes him in No Easy Walk to Freedom, Professor Bond’s insightful book on the Fourteenth Amendment – has rejected the notion of “benign” discrimination, accepted by the left-liberal justices in Bakke and still advanced by proponents of affirmative-action programs. In his articulation of the color-blind Constitution model, Justice Thomas also has bluntly but accurately identified affirmative-action programs as “racial paternalism”: “There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. . . . These programs . . . undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, `invidious [racial] discrimination is an engine of oppression.’ . . . It is also true that `remedial’ racial preferences may reflect `a desire to foster equality in society.’ But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.”
Affirmative-action programs thus cannot be justified as a “benign” form of discrimination, for they nevertheless classify individuals according to their race and therefore fail to meet the standard of equality before the law, Justice Thomas concluded. “Government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, pure and simple.” In 1996 the Court declined to review – and thus let stand – a federal circuit court decision, Hopwood v. University of Texas, that held that the University of Texas Law School’s affirmative action program unconstitutionally discriminated against white students. Finding that consideration of race to promote student diversity “is no more rational . . . than would be choices based upon the physical size or blood type of applicants,” the Court of Appeals for the Fifth Circuit called into question the validity of the Bakke decision and Justice Powell’s rationale for upholding affirmative action programs. Although the decision was binding only on state schools in Texas, Louisiana, and Mississippi, the Hopwood decision raised alarm bells in the minds of college administrators across the U.S. Most continued to support affirmative action and thus took the wishful position that, in the 47 other states where the Fifth Circuit decision was not binding, the Bakke decision continued to be good law. Indeed, I remember attending a law professors’ national conference in January 2000 in Washington, D.C., where representatives from the Association of American Law Schools – including schools in the states directly bound by the Hopwood ruling – participated in a discussion about “Affirmative Action after Hopwood” – which was not only a rally in support of racial preferences but also a strategy session on how to evade the law. (See my March 2000 essay “Hobnobbing with Fellow Wizards: A Report on the Law Professors’ Conferences in Washington, D.C.”) Finally, in June 2003 – after split decisions by other circuit courts (a Fourth Circuit decision against affirmative action at the University of Maryland, and decisions in the Sixth Circuit with conflicting holdings regarding affirmative action programs at the University of Michigan) – the Supreme Court revisited the issue of affirmative action in state college and university admissions programs, by ruling in the two University of Michigan cases. The decision was split: the Court struck down Michigan’s undergraduate admissions system, which awarded numerical values based on race and thus too closely resembled the quota system invalidated in Bakke. However, in its decision concerning the Michigan Law School admission system, Grutter v. Bollinger, the Court upheld a less-rigid law school admissions system under a rationale similar to Powell’s in Bakke. Justice O’Connor, who wrote the majority opinion in Grutter, wrote, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified members of every race and ethnicity,” thus approving the use of affirmative action to accomplish social engineering. In an even more remarkable passage (although I cannot decide whether it’s remarkable for its audacity or its naiveté), Justice O’Connor added, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Thus did O’Connor essentially admit that she was deciding the case on the basis of policy determinations – in other words, that instead of objectively following fundamental principles of constitutional law, she was acting as a judicial activist, shaping public policy (and, in this case, even suggesting an expiration date for the majority’s preferred policy). O’Connor cast the deciding vote in the Michigan case – the Court split 5-4 – and so the succession of the less activist, more restrained Justice Alito is likely to shift the majority of the Court clearly against affirmative action. Or so we can hope.
Affirmative Action in the “Real World”
In 1996 California voters passed the California Civil Rights Initiative (CCRI), more popularly known as Proposition 209, which provides, “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.” The chairman of the Proposition 209 movement was black businessman Ward Connerly, who had been appointed to the University of California Board of Regents by Governor Pete Wilson in 1993 and who had led the successful effort to end racial preferences in admissions, hiring, and contracts in the UC system. In his inspiring autobiography, Creating Equal: My Fight Against Race Preferences (2000), Connerly tells the inside story of both campaigns, as well as his nationwide efforts in support of similar equal-rights movements in Washington state (where voters approved I-290, an initiative similar to California’s Prop. 209), as well as ongoing efforts in Texas and Florida. Connerly opposes affirmative action for the simple reason that “This is wrong,” and he concludes his book by arguing that “however well disguised it once was as `diversity building’ and `inclusion,’ this affirmative racism has been unmasked for what it is.” Mr. Connerly optimistically looks forward to a future day in the not-too-distant future when the “reign of terror presided over by affirmative action officers will soon be a thing of the past, and those thick manuals of affirmative action rules, guidelines, and timetables are headed for the ash heap of history, where they belong.” He predicts that some day Americans will wonder how something as “malignant” as affirmative action ever existed: “I believe that one day soon we as a nation will shake our heads incredulously and wonder how we ever allowed this malignant structure to arise in the heart of our wonderful country in the first place. What was it that ever made us think that by encouraging government to disadvantage some we would liberate others? How could we have ever believed that the recipients of such condescending help would actually profit from it and not internalize the message it conveyed about their inferiority and incompetence? How did we ever convince ourselves that such a policy was consistent with the promise at the heart of American life? Why were we blind to the fact that rather than binding up our racial wounds, it made them deeper, uglier, and more likely to become septic? How did we ever forget that creating equal was the unfinished business we inherited from the Founding Fathers?”
Efforts to end affirmative action legislatively, by citizen initiative, have been successful, Connerly argues, “because the American people, with their sound common sense, are aware that the government has no place in the discrimination business. In almost every poll, by large majorities, they support the end of preferences” (Creating Equal, p. 266). In the state of Michigan, in the wake of the Supreme Court decisions in the University of Michigan cases, a similar effort is underway to put the Michigan Civil Rights Initiative (MCRI) on the state ballot. These and similar efforts to abolish affirmative action are gaining momentum as more and more thoughtful people – black and white, female and male, liberal and conservative – are beginning to realize that affirmative action programs do not solve the problem of racism but, in fact, make it worse, harming the very individuals they supposedly were designed to help. The reasons were given by Professor Wortham (quoted in the first section, above), when she listed the negative effects of affirmative action: among others, it “compromises standards of excellence,” it “undermines the reliance on merit as the standard” for admissions or hiring, it “contributes to the creation of a culture of mediocrity,” and it “reinforces the stereotype of minority group members as people unable to make it on their own,” while it “adds fuel to racial tensions by incurring the resentment of those not in protected groups.” Writing in the summer of 1997, just after the initial results of California’s Proposition 209 were becoming known, Walter Williams noted that the number of black and Hispanic students accepted at California’s elite public law schools (UCLA and Berkeley) had declined significantly, while the number of white and Asian students accepted rose. “How should people concerned with the upward mobility of blacks and Mexican Americans respond?” Dr. Williams asked. He emphatically rejected the notion that minority students need preferential treatment, explaining that the problem isn’t discrimination in admissions but the failure of our “corrupt” public education “establishment” to adequately prepare many black students for college and graduate school: “It all has to do with excellence. If blacks graduated from college with the same grade-point averages and Law School Admission Test scores, there’d be no question – they’d be admitted too law schools at the same rate as whites and Asians. “Nobody has claimed that law schools are turning away blacks with academic credentials equal to and higher than whites and Asians. The truth of the matter is that too many blacks receive twelve years of fraudulent primary and secondary education that cannot be overcome by four years of college. Unfortunately, liberals and civil rights organizations add to that disaster by giving unquestioned support to a corrupt education establishment that produces the fraud. Any kind of effective education reform, including educational vouchers, tuition tax credits, and even private voucher programs, is fought tooth and nail.”
(“Proposition 209 – The Messenger,” June 11, 1997, in Williams, More Liberty Means Less Government (1999), pp. 14-15.) In another essay, Professor Williams noted one of the positive effects of Proposition 209 (or similar initiatives): while it may decrease black enrollment at elite schools like Berkeley, it also reduces the problem of “mismatches” in college admissions. Consider, for example, the facts that while average SAT scores for black students at Berkeley (952) were higher than the nationwide average for all students (900), 70% of black students fail to graduate. Why? The rest of Berkeley’s students averaged nearly 1,200 in their SAT scores. Black students at Berkeley “weren’t `qualified’ or `unqualified’ in any absolute sense; they were mismatched”: “Blacks not admitted to Berkeley will not evaporate; there are three thousand other colleges they can attend. Eliminating racial preferences that lead to academic mismatches will lead to increased black graduation rates. If a black student with a SAT of 952 attends, for example, California State University at Los Angeles, where he is admitted on merit, instead of Berkeley, where he’s admitted on racial preferences, there’s a greater probability he’ll graduate.”
Williams concludes that “having black students actually graduate from college is far better than having black students be used as affirmative action tokens” (“Sacrificing Blacks,” Sept. 3, 1997, in More Liberty, p. 19). A recent study of affirmative action’s effect on academic achievement of black law students confirms that it actually hurts the chances of black students to obtain law degrees. The study, published in Stanford Law Review in fall 2004, was conducted by Richard H. Sander, a law professor at UCLA who describes himself as a life-long Democrat sympathetic to the goals of affirmative action. Looking at the performance of black and other students at 21 law schools in the mid-1990s, Prof. Sanders found that most black applicants “end up at schools where they will struggle academically and fail at higher rates than they would in the absence of preferences.” Because of the problem Prof. Williams described as the “mismatch” problem that results from affirmative action, black students tend to attend schools in which they find it difficult to compete. As a result, in general, 52% of first-year black law students’ grades put them in the lowest 10% of their class; 19% of black law students drop out without completing law school (compared with 8% of white students); and of those black law students who do graduate, about half continued at the bottom 10% of their class and only about 45% pass the bar exam on their first attempt (compared with about 80% of white graduates), at the schools studied. He concluded that “a strong case can be made that in the legal education system as a while, racial preferences end up producing fewer black lawyers each year than would be produced by a race-blind system.” Indeed, he estimates that if black students were admitted through a race-blind process, so their skills would be more properly matched to the schools’ own admissions criteria, far more black students would do well – graduate and pass the bar. He estimates that ending racial preferences could produce nearly 10% more black lawyers.
Will all these developments mean “the end of affirmative action”? Let’s hope so. As Ward Connerly has written, “Affirmative action has become an idea whose time has gone.”
| Link to this Entry | Posted Monday, January 23, 2006 | Copyright © David N. Mayer |
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