An Open Letter to Nathan Glazer
RE: Affirmative Discrimination: Ethnic Inequality and Public Policy, by Nathan Glazer (New York: Basic Books, 1975)
Dear Professor Glazer:
In 1966, I wrote, in my article "Individualism versus Racism," that it would take a police state to enforce the 1964 Civil Rights Act. But I had no what of knowing in what particular ways and to what extent such force would be brought to bear on the freedoms of Americans. Even as it was being purported to champion the civil rights of Negroes by outlawing discrimination according to race, color, or national origin, I knew that logically it could not be enforced without sacrificing the freedom of us all.
Many people, seeing that I am a Negro myself, felt my sentiments against the act were quite unusual. But I was not alone in my assessment. In his announcement on June 18, 1964, that he would vote against the Civil Rights Bill, Senator Barry Goldwater said that while he was opposed to all discrimination he believed it to be a problem that "is fundamentally one of the heart." Some law can help, he said, "but not law…(with) provisions which fly in the face of the Constitution and which require for their effective execution the creation of a police state.…The two portions of this bill to which I have constantly…voiced objections, and which are of such overriding significance that they are determinative of my vote on the entire measure, are those which embark the federal government on a regulatory course of action with regard to private enterprise in the area of so-called 'public accommodations' and in the area of employment.…The federal police force and an 'informer psychology' (which would be created by these provisions) are the hallmarks of the policy state and landmarks in the destruction of a free society."
If you will recall: Goldwater, who was campaigning for the presidency at the time, was denounced by many as a racist demagogue, and Governor Nelson Rockefeller said Goldwater had "effectively abandoned the Republican Party on the most fundamental issue of our time."
Now we are in the statist grip of the affirmative action quota system, which, in your words, "enshrine[s] some minorities as deserving of special benefits." And it requires, for the enforcement of laws against discrimination, "the setting of statistical requirements based on race, color, and national origin for employers and educational institutions," requirements that are also applied, to a lesser degree, in the area of housing and residential distribution.
Surely such a system runs counter to the 200-year-old American pursuit of equal opportunity for each individual to compete for the role and status he desires regardless of his race, color, religion, national origin, sex, or family. Surely this vengeance of ethno-race consciousness against individual rights and this assault by politicized neo-ethnicity on American pluralism were not meant to be. No, as your survey of the historical pattern of the American sanction and protection of individual rights indicates, this situation was not meant to be. But it is, as you so aptly describe.
It should be enough to demonstrate logically that affirmative action is immoral because it is racist and violates man's natural rights. But to make any real impact on the controversy, one must provide concrete exposition and valid data to support the general principle elicited. One must not only show that affirmative action is wrong in principle but also demonstrate the ineffectiveness of its practical implementation. This you have done in part. In fact, I think your demonstration of the ineffectiveness of affirmative action adds up to a more forceful argument against its general principle than perhaps you intended. What you convey about the negative impact of affirmative action on our society and its institutions is well worth the consideration of anyone who is at all concerned about the very real danger of our public policy and our way of life becoming captive to ethnic political interests.
You make your case—and you make it well. But your arguments are not enough. Attacking only the implementing extremities of the "equal opportunity/equal results" monster that has our judicial and legislative systems by the throat, you leave the monster's heart—the 1964 Civil Rights Act. The act plainly gives government a legal role in banning private discrimination, but is it a morally legitimate role? Is it right? Is it fair?
You say it is; you are concerned only about the government's extending its role beyond the provisions of that act. You make much of the fact that five of the act's eleven titles variously prohibit segregation or discrimination "on the ground of race, color, religion or national origin." The act could be read, you say, "as instituting into law Judge Harlan's famous dissent in Plessey v. Ferguson: 'Our Constitution is color-blind.'" You recite from the act's legislative history and quote passages from the act itself to demonstrate that the context of the law and the "clear and unambiguous intent" of Congress was "granting not group rights but individual rights."
You accept the "intent" of the act without giving much attention to the practical implications of its language and the contradictions it embodies. For instance, while titles 2, 3, 4, 6, and 7 clearly ban any special consideration of individuals on the basis of race, color, religion, or national origin, it is in title 8 that the stage is implicitly set for the use of statistical imbalance as proof of discrimination. In language that is just as "clear and unambiguous," title 8 directs the Census Bureau to compile registration and voting statistics based on race, color, and national origin wherever recommended by the Civil Rights Commission. (So much for color-blind law!)
Curiously, in your account of the administrative connection between the act and subsequent affirmative action legislation, you say nothing of title 8. It was implemented, however, in conjunction with title 1, the voting rights provision. And as you point out, title 1 was then strengthened by the Voting Rights Act of 1965, which ruled that if 50 percent of the persons of voting age, according to the census, had not voted, radical and drastic Federal intervention and correcting could be undertaken. This statistical approach was later implemented in the recommendation by the Civil Rights Commission that the Federal government set a national standard that no black children should go to a school that is more than 50 percent black—which, to be practically implemented, meant busing.
It is true, as you note, that title 7 bans preferential treatment and quotas in hiring and employment practices; so, too, does title 6 prohibit the assignment of students to public schools in order to overcome racial imbalance. But when it is regrettably a part of the American consensus that one has a "right" to schooling and a job, there is very little to prevent the statistical approach to protecting voting rights from being extended to education and employment. All it takes is a redefinition of the language by the administrative agencies and the courts. For, as you yourself write of the "utilization analysis" required by employers: "In effect, the Census is now to determine what is discrimination and what is affirmative action."
I cannot disagree strongly enough with your assertion that the Civil Rights Act was meant to grant individual rights rather than group rights. It doesn't matter that during the debate on the bill several congressmen expressed abhorrence to the idea of quotas, preferential hiring, busing, and the like and so incorporated this sentiment in the provisions of the act. What cancels out their lofty intentions and nullifies the language of the provisions is the breach of property rights in the public accommodations and employment titles. It is in the antidiscrimination clauses of these titles that the act grants administrative agencies the power to discriminate in favor of some citizens at the expense of others. It is here that it violates an individual's right to discriminate on the basis of race, color, or national origin. Granted, such nonviolent discrimination is immoral, but its immorality does not justify legislative prohibition of it. Doing so not only violates the 14th Amendment, which protects property rights, but it also violates the 1st Amendment, which protects the right of an individual to the nonviolent expression of his opinions.
The only way the Civil Rights Act can be implemented is with the power of coercion and by giving groups (discriminated minorities) the legal recognition that only individuals should have. Affirmative action is but the practical application of that contradiction in principle—to force into reality circumstances that would not otherwise come about, to hold that the desire to reduce discrimination justifies the use of coercion to bring it about. You acknowledge the contradiction as it exists in affirmative action programs, but you steadfastly exempt the Civil Rights Act from being the source and motive power of that contradiction.
You emphasize repeatedly that you are criticizing, not the government's attack on discrimination, but only those aspects of affirmative action that have nothing to do with discrimination, particularly those measures which require that the proof of discrimination be based on statistical distribution. Having said this, however, you still do not question the morality of affirmative action as a means of achieving integration and equal opportunity. You question only its effectiveness, its necessity, and the justice of its means of implementation. For instance, your attack on preferential hiring is not on principle, but because it generally doesn't do anything to benefit those who need it. You write: "For me, no consideration of principle—such as that merit should be rewarded, or that governmental programs should not discriminate on grounds of race or ethnic group—would stand in the way of a program of preferential hiring if it made some substantial progress in reducing the severe problems of the low-income black population and of the inner cities. Because I have doubts as to what this contribution will be, I take most seriously the third objection I have raised to preferential hiring: the creation of fixed ethnic-racial categories, the danger of freezing them, and the danger of their spreading."
This willingness to sacrifice principle to "what works," and merit to "need," is not atypical of you but part and parcel of your philosophy: "When it is established that the full status of equality is extended to every individual, regardless of race, color, or national origin, and that special opportunity is also available to any individual on the basis of individual need, again, regardless of race, color, or national origin, one has done all that justice and equity call for and that is consistent with a harmonious multiethnic society" (emphasis added).
But is "special opportunity" meted out by government decree consistent with justice and political equity? Does it make for a harmonious society? I say no; that special privilege for whatever reason is unjust when granted by governments as it can only come about by coercion and the violation of the rights of all. The attempt to achieve more than equal treatment can proceed only at the expense of political equality itself. And without political equality, the issue of a free society is moot.
Your pragmatism is further evident in your suggestions regarding the busing issue. "The principle that public policy should strive toward an even distribution of children of different races and ethnic backgrounds is a good one," you say. But you do not believe mandatory transportation to achieve an even racial balance can do what it promises. If there must be busing to reduce racial imbalance, you argue, let it be a matter for local communities to decide voluntarily through the process of political give-and-take rather than a matter of "judge-imposed" decisions. That voluntary busing, however, should be aimed toward achieving something more substantial than racial balance. Thus, you suggest: "A plan for busing might require not that black or Spanish-surnamed children be evenly distributed in the schools, but that children of low achievement be evenly distributed in the schools or that children from inner-city schools of low achievement be given the first opportunity to enter a program to bus children to suburban schools. This would achieve the same aims, and would place the emphasis where it should now properly be, on issues of school achievement."
Of course, you must know that mandatory discrimination according to such nonracial categories as scholastic achievement is no more consistent with the principle of voluntary association than is busing to reduce racial imbalance. But then you argue from what works and from a social system of freedom and controls—not from what is just and from a system of laissez faire. Even your suggestion that desegregation might be achieved through freedom of choice with the use of educational vouchers is tainted by this position.
In several reviews of Affirmative Discrimination, you are referred to as a neoconservative, as though to signal the reader either that your analysis is tainted or that its neo-conservative perspective is the only thing that makes it acceptable. I prefer to characterize your view as right-wing liberalism; and from where I sit, your work means to add significance to liberalism, not to conservatism—however much conservatives might desire it. Oh, you call for skepticism about government's ability to solve social problems, the skepticism that your colleague Daniel P. Moynihan once said conservatives are endowed with at birth. But, as indicated in your suggestions for correcting affirmative action and in your exemption of the Civil Rights Act from measures that abuse individual rights, you have by no means abandoned the liberal doctrine of "humanitarian" welfare statism.
The positions taken in Affirmative Discrimination are but part of the broader, contradictory context of your right-wing liberalism. Take, for instance, your stand on the question of whether equality of opportunity is contingent upon equality of condition. In this work you complain that between 1964 and 1971 the language of affirmative action administrative agencies was progressively changed to reflect the basic redefinition of "opportunity" to mean "result." Criticizing the 1971 guidelines issued by the Office of Federal Contract Compliance as "another example of the misnaming of reality in an age in which words are easily distorted into their opposites," you say: "The point of this pronouncement is that equal employment opportunity must now be redefined, against its plain meaning, not as opportunity, but as result." This is the neo-conservatism, the right-wing liberalism of Nathan Glazer, 1975.
But you have not always thought along these lines. I remind you of the June 4, 1965, address delivered by President Johnson at Howard University, in which he echoed your sentiments then: "[In] the next and more profound stage of the battle for civil rights, we seek not just freedom…not just equality as a right and a theory but equality as a fact and equality as a result. " The speech, written by then Assistant Secretary of Labor Daniel P. Moynihan, contained proposals from Moynihan's controversial report, The Negro Family: A Case for National Action, which called for massive government effort to solve the "Negro problem" by upgrading the Negro family. In that report Moynihan ascribed the concept of "equality as a fact and as a result" to Bayard Rustin and Nathan Glazer, whom he has since called "its principal authors and proponents." You'll remember that Rustin's redefinition of opportunity to mean result appeared in a 1965 Commentary article; and your own, in The Melting Pot, co-authored by you and Moynihan.
In effect, what we are given in Affirmative Discrimination is your 1975 right-wing liberal response to the direction that your 1965 left-wing liberalism has given to public policy on racial issues during the past decade. You and your colleagues are the ideological parents of affirmative action; what you are engaged in now is mere chastisement of the wayward offspring that has gotten out of hand. In my view, your complaints against the politicization of ethno-race consciousness via affirmative action are not complaints against the threat it poses to individual rights qua natural rights, but complaints against the threat it is to "liberalism" and its notion of individual rights qua pragmatic expediency. But with liberalism being tactically and philosophically "up against the wall," as Daniel Bell puts it, rolling and pitching on the ocean of benevolent welfare statism, you are forced to stay your course with an assortment of libertarian and conservative ballast. That, essentially, is the "neo-conservatism" people perceive in your most recent writings and pronouncements.
In a New York Times article, black journalist Orde Coombs laments "the retreat of the liberal sages" and accuses intellectuals like Moynihan and you of trying to renounce liberalism and usher in the past. Mr. Coombs is mistaken, however. There is no retreat from your basic ideology, only a change in direction, as made clear by Moynihan in his response to Coomb's disillusionment: "Mr. Johnson's speech was an attempt to articulate a vision while warning of coming troubles. The vision was great; the warning was true.…Those of us whom Mr. Coombs despairs have not ourselves despaired. We knew the future which seemed clear sailing to many, would be stormy, and the course long.…And it has been stormy. But we are still on deck. We will stay the course.
"The fact that we have been among those first to call attention to the failures of programs we ourselves helped in various ways to create means that we are still committed to the goals these programs were designed to achieve. Correcting course in a storm is a way of staying the course.…"
Moynihan's article, written "in the name of my colleagues," is the all-important footnote to Affirmative Discrimination. In 1965 you and many Americans were quite willing to sacrifice the principle of freedom to the principle of equality. Now, a decade later, you rightly point a finger of correction at your past position. But your improved reasoning does not put us any closer to the fullest expression of human rights required in a free and open society; it only reforms the inefficiency of statism's mixture of controls and freedom.
The difficulty I have with most social reforms proposals is that, being opposed to the general principles behind them, I require an extra measure of tolerance to examine aspects of their particular means of implementation. It is difficult to argue the pros and cons of particular affirmative action policies when I question the morality and legality of provisions in the 1964 Civil Rights Act on which many of these policies are founded.
The Federal government should cease and desist in its ban on discrimination and de facto segregation in the private sector, period. Only after sufficient protection has been instituted against government's attempt to legislate morality and restrict voluntary association does any discussion of antidiscrimination measures in the public sector make sense. It simply is not government's business to create interracial goodwill or harmonious multiethnic relations, although it is its business to maintain a free and peaceful society in which these ends can be pursued voluntarily and at their own pace. And this can come about only by repealing most of the laws in this area, not by mere correction of their bureaucratic implementation.
Mind you, I fully appreciate the difficulty of moving from the implementation of Johnson's 1965 promise "to fulfill these rights" back to the Constitutional and rational requirement that government only preserve and protect human rights. But the difficulty of implementing the philosophical and political imperatives of freedom and justice for all men is no reason for abandoning its possibility.
What affirmative action needs, Professor Glazer, is not correcting, but ending. And what your course needs is not staying, but changing.
Anne Wortham is a free-lance writer and research librarian in the newspaper syndication industry.
This article originally appeared in print under the headline "An Open Letter to Nathan Glazer".