Civil Rights

Affirmative Agony

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In Defense of Affirmative Action, by Barbara R. Bergmann, New York: Basic Books, 213 pages, $23.00

The Affirmative Action Fraud: Can We Restore the Civil Rights Vision?, by Clint Bolick, Washington, D.C.: Cato Institute, 170 pages, $19.95

Ending Affirmative Action: The Case for Colorblind Justice, by Terry Eastland, New York: Basic Books, 229 pages, $23.00

The persistence of affirmative action through nearly three decades must be puzzling to supporters and opponents alike. Media reports of a sudden backlash against affirmative action by "angry white males" notwithstanding, opinion surveys taken over the years show broadly based opposition to preferences based on race and sex, encompassing large majorities of white women as well as pluralities of blacks and Hispanics. Nor is widespread opposition to affirmative action new; survey data show that Americans have been uncomfortable with preferential affirmative action policies since their inception during the first Nixon administration.

The protracted controversy over affirmative action has inspired a burgeoning literature nearly as ubiquitous as affirmative action itself. Reading the latest contributions by Clint Bolick, Terry Eastland, and Barbara Bergmann, it is hard to believe that more than 20 years have passed since the publication of Nathan Glazer's seminal critique, Affirmative Discrimination: Ethnic Inequality and Public Policy. Back then, affirmative action seemed unlikely to survive the combined effect of popular antipathy and the powerful arguments leveled against it by Glazer. Yet the affirmative action regime has flourished, and new books keep coming. Today the challenge for those writing about affirmative action is to contribute something original to what seems an eternal debate.

Both Bolick and Eastland meet this test. Both rehearse the history of affirmative action, emphasizing how affirmative action was swiftly transformed from a campaign to encourage blacks to avail themselves of the equal opportunity promised by recently enacted federal civil rights legislation. Instead, affirmative action rapidly became a bureaucratically and judicially administered system to ensure statistical parity among racial and ethnic groups, and between the sexes, in the workplace, higher education, and government contracting. Antidiscrimination law has come to regard any imbalance among groups as prima facie evidence of illegal discrimination. Affirmative action thus entailed an entirely new understanding of civil rights, according to which intentional discrimination against an individual belonging to an overrepresented group (in most contexts, whites or males, but also, and increasingly, Asians) is permitted, and often required, to combat "discrimination"–now defined as unequal outcomes among groups.

This much is by now familiar to most readers. But Clint Bolick updates the story by exploring the civil rights record of the Clinton administration–a matter that has received little coverage in the mainstream press. The aborted nomination of Lani Guinier in 1993 to head the Justice Department's civil rights division was merely a temporary detour for an administration that "has been the most quota-driven in history." After posing as a centrist Democrat during the election campaign (remember his ostentatious denunciation of Sister Souljah's call for black-on-white violence?), and railing against "bean counters and quota games" shortly after his election, President Clinton handed over the entire federal civil rights enforcement apparatus to appointees from a virtual "roll call of establishment civil rights groups," writes Bolick. As a result, the agenda of this powerful special interest lobby has been aggressively pursued by the Justice Department, the Equal Employment Opportunity Commission, the Department of Education's Office for Civil Rights (OCR), the Department of Housing and Urban Development, and the U.S. Commission on Civil Rights.

If nothing else, the record of these activists turned government officials demonstrates the lengths to which affirmative action doctrine can be taken. OCR Director Norma Cantu ordered an investigation of Ohio's high school proficiency exam when she learned that a third of the 2.6 percent of graduating seniors who had failed the exam were black. Notwithstanding an earlier federal court ruling that the exam was free of racial bias, Cantu was determined to use her authority to rid Ohio–and presumably other states–of achievement tests that yield disparate outcomes among racial groups.

Meanwhile, Assistant Attorney General for Civil Rights Deval Patrick has been busily inducing "voluntary" settlements of civil rights violations that involve nothing more than failing to maintain group parity in an employer's work force. Early last year, Patrick demanded that the city of Fullerton, California, sign a consent decree requiring it to produce a 44.3 percent minority applicant pool, including 9.1 percent blacks, in a city whose minority population is 37 percent minority and 1.9 percent black–despite the fact that the city had received no individual claims of discrimination.

Bolick describes how Chevy Chase Savings and Loan became the victim of similar machinations. Patrick conjured up a lending discrimination suit against the bank on the grounds that it operated an insufficient number of branch offices in minority-dominated census tracts. He was thus able to coerce Chevy Chase officials, who could obviously do without the negative publicity associated with a federal discrimination complaint, into agreeing "not only to open new branches, but also to adopt hiring quotas, approve loans for blacks at below-market rates, provide grants to cover down payments, and advertise in minority-owned media outlets, including 'at least 960 column inches' of advertisements in black-targeted newspapers."

Patrick's zealotry regarding affirmative action is clearest in his behavior in the case of United States v. Board of Education of Piscataway. Faced with a budget shortfall, the Piscataway, New Jersey, school board was forced to lay off one of two teachers with equal seniority. Ordinarily such dilemmas were resolved by a coin flip, but this time the board decided to lay off Sharon Taxman, who is white, in order to retain the other teacher, a black woman. In a letter to Taxman, the board explained that it acted as it did in the interest of diversity.

Having inherited the case from the Bush administration, the Clinton Justice Department successfully prosecuted it on Taxman's behalf. But by the time the Piscataway school board had filed its appeal, Patrick had assumed his post as assistant attorney general for civil rights. On the appeal, he took the extraordinary step of reversing the government's position in the case, this time siding with the school board and arguing for the reversal of a decision that had been won by his own administration. The case is still pending.

The implications of the Piscataway case, so emblematic of the state of affirmative action today, are searchingly analyzed by Terry Eastland. He notes that the school board's defense of its action rests on its desire not to remedy alleged past discrimination, but to preserve racial diversity in a department that had one black teacher (never mind that black teachers were statistically overrepresented in the school district as a whole). "Potentially," Eastland quotes from Patrick's brief, "the same interest in faculty diversity could tip the balance in favor of a white teacher if the composition of a department would otherwise have included no white teacher." President Clinton endorsed the Patrick brief, adding that if "there were only one white teacher on the faculty in a certain area," it would be appropriate for the school board to "keep the white teacher also to preserve racial diversity."

It is hard to see this as anything other than a cynical ploy to make affirmative action more palatable to whites by implying that they, too, could conceivably receive preferential treatment. With brutal candor, Eastland divines the true meaning of Clinton's remark: "'Keep the white teacher' means 'lay off the black teacher because the black teacher is black.' It could mean laying off a Hispanic teacher because the Hispanic teacher is Hispanic. And so on." And Clinton would do this, Eastland reminds us, in the name of Title VII of the 1964 Civil Rights Act, which was meant to protect individuals from precisely this kind of discrimination.

Eastland breaks new ground in his analysis of the nexus between affirmative action and immigration. Proponents of affirmative action are forever trumpeting the advent of a multi-ethnic, multi-racial America as evidence of the need for more "institutional diversity," and hence more affirmative action. But Eastland shows that the large-scale non-white immigration the United States has experienced in recent decades only strengthens the case for colorblind law. "Most legal immigrants who possess the necessary race or ethnicity are in theory eligible for most affirmative action programs," Eastland writes. Thus, those programs "prefer immigrants over native-born citizens" and "extend a benefit to some immigrants that is not available to others."

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.

Robert R. Detlefsen (rdetle00@counsel.com) is the author of Civil Rights Under Reagan (ICS Press).