Letters

From the November 2002 issue

(Page 3 of 3)

Epstein also thinks that when government actors are in competition with private actors, the latter's discrimination justifies the former's. Besides being a breathtaking non sequitur, this would require repeal of not only the civil rights statutes but the Equal Protection Clause of the Constitution's 14th Amendment.

Finally, Epstein asserts that the fact that racial and ethnic preferences "have been so widely adopted (even to excess) in the face of such strong opposition testifies that, in sharp contrast to Jim Crow, they are not the product of a corrupt or factional political system." But the adoption of preferences by private and public bureaucracies is almost always done surreptitiously, and the weight that preferences afford race and ethnicity is never admitted. Their adoption, particularly in employment, is also frequently a result of lawsuits, government pressure, and threatened boycotts. When there is actual debate, preferences are rejected, as with the passage of Proposition 209. (Epstein offensively dismisses this law, prohibiting government racial discrimination, as just "Ward Connerly's monochromatic vision of human nature.")

Race raises complex issues, but the Constitution gives us a simple rule that would work very well in helping navigate them: Governments should not have one set of standards and legal protections for some, and another for others.

Roger Clegg
General Counsel
Center for Equal Opportunity
Sterling, VA

Richard Epstein replies: Roger Clegg's letter represents a curious combination of the practical and theoretical. At the outset, he criticizes my pie-in-the-sky proposal to repeal civil rights laws as they apply to private discrimination. He then states that there are only two real choices: a color-blind regime and a world of affirmative action.

Alas, he is guilty of as much wishful thinking as I am. There's only one choice. Congress will not upset the current double standard that allows but does not require affirmative action. The current program allows private firms to practice the discrimination they desire and forbids only the discrimination they don't want to practice. No sensible American business or university will want to chuck that dual standard. Clegg is right that our flagship institutions conceal the extent of their affirmative action programs, but they do not hide their support for them.

State institutions present a much closer question. I fully share Clegg's belief in the color-blind Constitution to the extent that it involves the enforcement of the state criminal and civil law. It would be intolerable to have one set of rules for white burglars and another for black. But for better or worse, the state no longer functions solely as a night-watchman state. Once it gets into the business of dispensing benefits, it resembles a private firm, so the demand for color-blind treatment loses much of its urgency. I don't think the Equal Protection Clause will, or should, chain organizations such as state universities to a strict color-blind rule.

Glenn Loury is wrong to preach the moral necessity of affirmative action. Roger Clegg is equally wrong in urging us to obliterate these programs. The hard questions in this area boil down to matters of proportion and degree, on which we learn as little from Clegg's absolutism as we do from Loury's.