Affirmative Agony

Robert Detlefsen from the July 1996 issue

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Immigrants benefit from affirmative action because hiring and promoting immigrants "of color" is an effective way for private employers to get around the thorny problem of disparate impact--the principle that a work force whose racial composition differs from the population from which you hire is proof that you are discriminating illegally. Businesses that contract with the federal government are automatically subject to government-mandated numerical goals, and these, too, can be met through the hiring and promotion of immigrants.

Of course, not all immigrants will benefit from affirmative action, but its existence is likely to affect every immigrant's perception of his adopted country. "Cultural assimilation" once referred to the informal processes by which immigrants came to understand and appreciate concepts such as individual rights and personal responsibility. With affirmative action, cultural assimilation means telling newly arrived immigrants that they are entitled to special benefits merely because of their membership in a designated group.

Both Bolick and Eastland deny that affirmative action can be reformed; it must be ended. The burden of Barbara Bergmann's In Defense of Affirmative Action is to show that affirmative action is an indispensable corrective to the unfairness and social strife endemic in American life. Thus, while Eastland worries about the proliferation of groups eligible for affirmative action, Bergmann would extend preferences to still more groups. For example, a goal for hiring lawyers of Irish or Jewish ancestry would be desirable for a New England law firm that has "no partners or associates of Irish or Jewish extraction." But Bergmann gives no indication of how many Jews or Irishmen would be enough.

She never describes specifically when we could say that affirmative action has achieved its goal or even what that goal is. When Bergmann announces that "over-the-road truck driving" is highly segregated by sex, she doesn't say what proportion of truckers would need to be female for her to consider long-haul trucking to be desegregated. Would, say, 10 percent female representation be enough, or would our goal be as high as 51 percent? Thus her definition of affirmative action is vague and open-ended: "Affirmative action is planning and acting to end the absence of certain kinds of people --those who belong to groups that have been subordinated or left out--from certain jobs and schools." Or even more preposterously: "Drawing up goals for an affirmative action plan is the equivalent of saying that we want to end the tradition of giving white males as much pie as they want at the expense of all other groups."

As is so often the case, tendentious definitions presage a biased presentation of evidence. Bergmann draws sweeping conclusions based on little more than her personal observations and impressions, and those of her friends. Thus, when she notices while dining in a fancy restaurant that all of the waiters appear to be white men, she infers that blacks and women are "excluded" from the wait staffs of the nation's upscale restaurants. Bergmann also seems blissfully unaware of how affirmative action actually works.

She never mentions race-norming, or the disparate impact theory of discrimination, or Griggs v. Duke Power, the landmark Supreme Court case that wrote disparate impact into Title VII law. In a book about affirmative action, these are egregious omissions. Disparate impact reasoning has subordinated objective, merit-based criteria to considerations of race and sex, and has been the focal point of much of the recent debate over affirmative action (as in the dozens of reverse discrimination lawsuits brought against police and fire departments).

Bergmann offers a tediously familiar defense of affirmative action in college admissions: that a preference based on race or ethnicity is no different from a preference based on athletic ability, geographic origin, or alumni parentage. If affirmative action's critics are truly dedicated to merit above all else, then they should also protest, with equal vehemence, these other types of preferential treatment. In fact, she writes, "nobody seems to care very much. Only race seems to resonate." Precisely. Bergmann seems to think that she has uncovered blatant hypocrisy, but she has really exposed her own indifference to what was supposed to be the animating principle of the civil rights movement.

Simply put, the movement taught that race and ethnicity were singularly inappropriate bases upon which to allocate social goods. It succeeded because it managed to persuade people that, whatever other criteria are used to decide individuals' fate, the use of race and ethnicity is categorically pernicious and wrong. Jettison that belief, and one could just as easily take the position that we shouldn't worry about discrimination against minorities and women until other forms of discrimination are halted. As soon as our willingness to condemn race and sex discrimination becomes contingent upon the particular race or sex to which the victim belongs, then pious rhetoric about the "evil of discrimination" can no longer be taken seriously. Bergmann's book demonstrates this clearly.

Even the critics of affirmative action don't always embrace colorblind justice as sufficient. Bolick himself, after having made an incontrovertible case for ending affirmative action, feels nevertheless that "those who challenge current policies" are obliged to "suggest constructive alternatives." Thus for Bolick, "empowerment--the removal of barriers to opportunities that prevent individuals from controlling their destinies--represents the ultimate accomplishment of civil rights." Empowerment, thus defined, turns out to be the provision of vouchers to poor parents so that they may enroll their children in private schools, and the repeal of unnecessary laws that impede entry into certain occupations and discourage small-scale entrepreneurship. So salutary is this agenda that Bolick "would be willing to leave intact the current regime of racial preferences in a straight-up exchange for school choice and economic liberty, for...empowerment of low-income people would render 'affirmative action' redundant and obsolete."

One can support Bolick's "empowerment agenda" without sharing his Panglossian view of its probable impact. By all means, let us have more economic liberty, but let us also acknowledge that the degree of economic liberty we already have is sufficient to permit countless aspiring entrepreneurs to realize their dreams; indeed, such people are drawn to the United States from all over the world for this very reason. That the condition of the black underclass--the group Bolick wants to empower--can be blamed on more than lack of entrepreneurial freedom should be painfully obvious. And it should be just as clear that an incremental increase in the extent of economic liberty will not cause those problems to disappear.

School choice is an appealing strategy because it promises to produce citizens with the skills and values necessary to take advantage of economic opportunities that already exist. But there is no guarantee that it will improve race relations. Indeed, proponents of school choice for inner-city blacks may be surprised at the number of black parents who would opt for explicitly Afrocentric schools that preach black nationalism. It is a measure of how far we have come that the call for colorblind justice must be sugarcoated with promises of "empowerment." The most compelling objection to this kind of talk is that it implies that ending the regnant system of racial preferences is insufficient as an end in itself. It is not. As Eastland reminds us, "the choice for colorblindness is the choice our best tradition invites us to make." Let us accept the invitation without reservations, and without qualifications.