Color Blind

David E. Bernstein from the May 1996 issue

(Page 2 of 2)

Instead, the authors return to their focus on democracy. Roberts and Stratton do a truly masterful job of proving that the Civil Rights Act was intended to prohibit all forms of discrimination, including reverse discrimination. They then explain how bureaucrats and judges nevertheless managed to institute a quota regime under the act. As is true throughout the book, the authors provide a wealth of interesting and often amusing detail to support their analysis. For example, the authors report that Alfred Blumrosen, the first compliance chief of the Equal Employment Opportunity Commission, steered the agency toward enforcing quotas. Why did Blumrosen have a free hand? Because the first chairman of the EEOC, Franklin D. Roosevelt Jr., spent most of his time yachting. Staffers sang "Franklin's Away" to the tune of "Anchor's Aweigh" during his many prolonged absences.

Contrary to the authors' views, however, it seems that bureaucratic and judicial support for affirmative action did not "destroy" democracy, but simply anticipated it by a decade or two. In a series of Supreme Court decisions in 1989, the Court returned to the original intent of the civil rights laws and reined in affirmative action. Two years later, however, George Bush signed the Civil Rights Act of 1991 into law, and racial preferences once again became the law of the land.

Roberts and Stratton clearly oppose the 1991 act, and other affirmative action schemes, but do not state what alternative they support. Perhaps the authors could not agree, which would explain why the book's position on the desirability of the 1964 act's prohibitions on private discrimination is muddled. Or perhaps they would both join most conservatives in supporting a strict, neutral civil rights law, under which whites would have the same right to sue for discrimination as minorities. Whites would be able to win lawsuits based on indirect and statistical evidence of discrimination, as protected minorities do currently.

Under such a regime, employers seeking to avoid lawsuits would begin to hire workers based purely on objective credentials. Not coincidentally, blacks and members of other relatively impoverished and less-educated groups have fewer formal credentials than whites. Hence, neutral civil rights laws steer employers away from giving applicants with inferior paper credentials a chance. Blacks, Hispanics, and American Indians are therefore probably better off without civil rights laws than with harsh, neutral laws that do not permit affirmative action.

It would be possible to mitigate this result by allowing people to win civil rights lawsuits only when there is direct evidence of blatant discrimination. Back in 1964, many supporters of the Civil Rights Act seemed to have this kind of regime in mind. Within a few years, however, blatant, open discrimination of the (once common) "No Dogs or Jews allowed" variety had disappeared almost entirely. Today, even if the civil rights laws were all repealed, this type of discrimination would be unlikely to reappear except in very isolated pockets.

Civil rights activists are therefore correct when they accuse conservatives who oppose affirmative action of essentially opposing civil rights laws. The only types of civil rights laws that apply to private conduct that conservatives can support would eith er actually harm minorities, or would be almost wholly ineffectual. The debate over affirmative action would be far more honest if both civil rights activists and conservatives would acknowledge that truly neutral civil rights laws are simply not a viable option.

The answer, however, is surely not state-imposed racial preferences. Roberts and Stratton, to their credit, recognize that government-mandated preferences are not simply a threat to white males, but to the liberal order as a whole. As the authors explain, the Western world has progressed over the centuries from a feudal order, in which a person's rights depended on his status, to a liberal one, where each individual is equal under the law. Racial preferences bring us back to a society based on status.

The authors are also correct in noting disturbing similarities between modern left-wing thinking on race and the ideology of perhaps the most illiberal regime in history, Nazi Germany. (But they undermine their point by drawing hysterical parallels between the rise of anti-semitism in 1930s Germany and what they call the "systematic deleg itimization of the white male" in contemporary America.) The modern American left is obsessed with racial identity and origin. Left-wing academics promote the idea that one's ethnic origins determine both what a person thinks and how much value society should attach to those thoughts.

Even more troubling, like other totalitarians, left-wing racialists encourage reliance on emotions and feelings, leaving many affirmative action activists seemingly utterly impervious to reason. When I was a first-year stude nt at Yale Law School, left-wing students organized a student "strike" for one day to promote "diversity." One student speaker expressed her outrage that a white classmate declined an invitation to attend a "Women of Color and the Law" meeting. The classmate stated that as a white woman she was not "of color," and would therefore not be welcome. Reasonable? Not to the outraged speaker. She proclaimed that the white student was being racist because she saw whites as being of neutral pigment, while everyone else was "of color."

No one in the large crowd seemed to notice that it was the minority students who had designated themselves as being "of color" in the first instance. The glassy-eyed crowd's response to the speaker's inane blather was to applaud wildly. I witnessed the same reaction to several equally moronic speeches throughout the day. I went home very, very frightened.

In the long run, the ultimate victims of racialist thinking are likely to be America's traditional scapegoats, blacks, who continue to be vulnerable to political demagoguery because of their high degree of social separation from dominant white America. Roberts and Stratton, however, myopically suggest that racialist thinking might lead to an outbreak of violence against white males.

In fact, white males have held, hold, and will continue to hold for the foreseeable future a dominant position in American society. Affirmative action itself, in fact, is a creature of elite white males: senators, congressmen, presidents, Supreme Court justices, cabinet officials, university presidents, corporate CEOs, and so on. Elite white males could also end it any time they wanted to.

The reasons that they have not done so, it seems to me, is first, that affirmative action allows elite white males to show their concern for minorities by imposing costs on other, less powerful white males. Thus, incumbent tenured professors do not resign their own positions to make room for affirmative action candidates, but instead limit the job opportunities of young scholars who happen to be white males.

Second, affirmative action is the easy way out, tokenism at its worst. While my classmates at Yale spent hours and hours of time and energy pressing for more minority representation on the faculty and in the student body, thousands of poor black New Haven youths were trapped in horrible social conditions, surrounded by crime, and failed by the public school system. Few of them graduated high school, much less got a chance at attending law school.

The protesters eventually persuaded the faculty to award tenure to an obscure black professor who had published next to nothing. Would it be churlish of me to suggest that the law school would have struck a far greater blow for equality if it had donated the present value of this professor's future salary (which I would conservatively estimate at $3 million) to tutoring programs for local New Haven youths who are interested in becoming attorneys?

Affirmative action, then, should be ended not only because, as Roberts and Stratton argue, it violates individual rights, conflicts with a healthy civil society, discriminates against white males, and creates opportunities for government mischief-making, but because it distracts people of goodwill from confronting the real racial problems facing the United States. Quotas and set-asides may create the illusion of a just, equal society, but do little to actually implement it.

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