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Chapter One: A Question of Discrimination

When the University of California at Berkeley routinely admits African American students with lower grades and SAT scores 200 points lower than Chinese Americans who are rejected, there is nothing fancy or esoteric about what the university is doing: it is discriminating against Chinese Americans on the basis of race. When the Department of Defense (DOD) requests bids for a road construction contract at the White Sands missile range and then informs a white bidder that the contract is "sheltered" for the benefit of racial minorities, DOD has discriminated on the basis of race. When, under pressure form the U.S. Department of Justice, the state of North Carolina draws a congressional district with no substantial black voters to elect a black congressman, white voters have been discriminated against. And when a white firefighter in Birmingham, Alabama, who finished eleventh among those taking a promotion exam for lieutenant is passed over in favor of a black who finished ninety-fifth, that white fireman has also suffered discrimination on the basis of race.

Americans of all races and political persuasions in overwhelming numbers disapprove of any sort of officially sanctioned race discrimination. As practiced today, affirmative action discriminates on the basis of race, gender, or ethnicity against whites, males, and other unfavored groups. And yet today this official discrimination is one of the most pervasive and powerful of government social policies, denying Americans jobs, career and educational opportunities, even handicapping their ability to bid on government contracts unless they fit into one of the preferred racial or ethnic categories.

Supporters of such discrimination have argued that it is "benign" and, as such, distinguishable from the more virulent forms of race discrimination practiced in the past. Indeed, the argument runs, this past discrimination has so disadvantaged blacks as to make modest preferences a practical necessity. Whatever its merits, and available evidence suggests they are dubious, the approach fails on legal grounds. Despite recurring dissents, the Supreme Courts has specifically and repeatedly held that neither past official discrimination nor current generalized societal discrimination justifies special treatment by the government for members of the afflicted group who have, as individuals, suffered no harm.

But despite the Court's unceasingly clear rejection of discrimination in principle, affirmative action remains pervasive today, just as in 1964, ten years after Brown v Board of Education, Jim Crow still ruled the South. Facing both political and legal rejection, those who would perpetuate the current affirmative action regime have danced gingerly roundabout the core issue to do battle with a series of straw men, to cite ills their remedies do not address, and to broaden the community of beneficiaries in the hope of improving the political odds. So far, they have been remarkably successful.

That was the approach President Clinton took in his address on affirmative action delivered at the national Archives Rotunda on 19 July 1995. The speech announced the conclusion of an Affirmative Action Review undertaken by the White House as the Supreme Court wrestled with the issue of minority preferences in federally subsidized construction contracts. By the time the review was completed, the Court had held in the Adirand case that such preferences can be applied only as remedies for specific discrimination and even then only when narrowly tailored to redress past abuse. Although both the Affirmative Action Review and a separate Justice Department analysis of the Court's holding acknowledged that the decision called into question a number of federal programs, the president, undeterred, continued his administration's support for affirmative action, making only such adjustments as were essentially dictated by the Court decisions.

Mr. Clinton acknowledged that many believe "affirmative action always amounts to group preferences over individual merit," and that "it demeans those who benefit from it and discriminates against those who are not helped by it." He continued: "But I believe that if there are no quotas, if we give no opportunities to unqualified people, if we have no reverse discrimination, and if, when the problem ends, the program ends, that criticism is wrong." This has become the standard defense: Concede that affirmative action would be wicked if it contained any of its essential elements, proclaim that henceforth, the government will practice only affirmative action that lacks the very discriminatory policies that make it affirmative action, and then continue as before. So might poll taxes have been defended a few decades ago; indeed, that is how everything from poll taxes to many school segregation schemes were defended - by denying they had any discriminatory purpose.

Mr. Clinton's formulation of the issue was itself an oxymoron: if we have no discrimination against whites or other unprotected categories - so-called "reverse discrimination" -- then we, in fact, have no affirmative action, since affirmative action, by its very definition, involves preferring one race, sex, or ethnic group over another. A contract that is closed to non minorities clearly fits this definition. So does one which grants, say, a 10 percent bonus to a contractor who chooses a minority subcontractor. Even colleges and universities that purport to make race nothing more than a "tie breaker" or "plus factor" are engaging in what the president calls "reverse discrimination", most, in fact, go a good deal further in preferring blacks and Hispanics over far more qualified whites and Asians. It is, in short, a logical fallacy to assume that one race, sex, or ethnic group can be preferred without another being disadvantaged.

The president then defined the scope of the problem in a manner certain, if not calculated, to broaden the political constituencies beholden to affirmative action and to ensure that neither the problem nor the program would ever end. "The unemployment rate for African Americans remains about twice that of whites. The Hispanic rate is still much higher. Women have narrowed the earrings gap, but still make only 72 percent as much as men do for comparable jobs. The average income for an Hispanic woman with a college degrees is still less than the average income for a white man with a high school diploma."

Now there are many reasons why black unemployment rates exceed whites rates, why a diminishing residual disparity exists between make and female earnings, and why Hispanic women earn less than white makes, but few of them have to do with rampant discrimination in the workplace. Such factors as education, scores on achievement tests, family structure, drug use, involvement with the criminal justice system, the attempt by many able women to accommodate both home and career, and language facility are all far more important in the view of every economist who has studied the matter seriously, and problems not rooted in discrimination cannot be cured by affirmative action. As June O'Neill, director of the Congressional Budget Office, and Harold Orlans have written, "Affirmative action is afflicted by gigantism. A single idea, discrimination, cannot adequately explain the greatly varied conditions and economic statistics of groups composing a majority of the population."

Contrary to the suggestion implicit in the president's statement it is also widely acknowledged that affirmative action does little to help those most in need. Economist Glenn Loury of Boston University describes affirmative action as "a small tax corporate America pays to the black elite." University admissions and scholarships grounded in race preference inordinately reward the black middle and upper classes. So do government-mandated set-asides, because the unemployed black or the person receiving something at or close to the minimum wage is rarely in a position to bid on a government contract whatever the preference involved. Professor Steven Carter of the Yale Law School has acknowledged that "[t}he degree of support for affirmative action in the professions bears no relation to the degree of one's concern about black people who are worst off, for the programs do them little good."

Increasingly, black scholars and community activists have come to acknowledge that behavioral problems in the inner city are far more responsible for poverty than external discrimination. Robert L. Woodson, Sr., president of the National Center for Neighborhood Enterprise, has testified: "This poverty is not the result of external circumstances but of irresponsible choices and chances taken by individuals. It includes poverty resulting from drug and alcohol addiction (which is a factor for as much as 60 percent of our homeless population) and out-of-wedlock births. Research reveals that 22 percent of children form one-parent families will be in poverty for seven years or more, compared with 2 percent from two-parent families."

In his brilliant study, The Truly Disadvantaged; University of Chicago sociologist William Julius Wilson describes how the era of equal opportunity for black people with an education and professional training or skill has, perversely, brought even greater misery to those left behind. In the "bad old days" of job and residential segregation, most black doctors, lawyers, teachers, clergymen, and skilled workers continued to reside in the inner city, providing structure and leadership to their communities. But as they prospered and moved away, criminals, drug dealers, and other less desirable elements took over. As a result, Wilson writes, "if strong norms and sanctions against aberrant behavior, a sense of community, and positive neighborhood identification are the essential features of social organizations in urban areas, inner-city neighborhoods today suffer from a severe lack of social organization." The implications of Wilson's analysis is not, of course, that society should revisit its segregationist past, but rather that a new generation of community leadership is needed, one which spends more time addressing the life choices made by inner-city residents and less time fashioning irrelevant remedies that address the discrimination of a bygone day. As liberal sociologists David O. Sears and Donald R. Kinder have acknowledged, '[o]ver the past 30 year's, white opposition to equal opportunity has sharply declined. On voting rights, schools, public accommodations, housing and employment practices, segregationist sentiment has all but disappeared. White America has become, in principle at least, racially egalitarian - a momentous and undeniably significant change."

The president's assurance that nothing in affirmative action suggest that benefits are to be bestowed upon the "unqualified" is a variation of the old debater's trick of constructing and demolishing a straw man to distract attention from the point at issue. Discrimination is practiced when race is weighted as an independent factor in admissions, employment, promotion, or dismissal. The beneficiary of such discrimination may or may not be qualified for the position in question. But all too often, he is less qualified than the victim of race discrimination. And the enforcers of affirmative action do not stop there. For much of the past generation one of the pillars of the affirmative action establishment has been the assault on objective standards of merit. In practice, this has taken the form of attacks on employment tests, promotion exams, SAT's, teacher and student competency tests, ability grouping, academic tracking, and job skills certification procedures. Currently, blacks and Hispanics tend to score less well on standardized objective tests than do whites and Asians despite vast and costly government programs designed to close the gap. As a result, the mere administration of such tests and procedures is said to have a disparate impact on blacks and Hispanics. And this can be legally justified, in the employment context, only by business necessity as defined by the government - including the agencies seeking to perpetuate affirmative action. But an employer who uses a test that fails to meet the government's none-too-clear definition of business necessity is guilty of discrimination even though his intent was merely to select the most competent employee regardless of race.

Once discrimination is established, a vast assortment of remedies - many more punitive than remedial - can be imposed on the offender by the government or the courts, including back pay, hiring or promotion quotas, or other special activities designed to increase the number of minorities in future hiring situations. For that reason, the affirmative action establishment loves the theory of disparate impact and has sought to extend the doctrine to areas as remote from employment as mortgage lending and home insurance. For the same reason, endorsing antidiscrimination laws while opposing affirmative action - an many well-meaning commentators have done - can be a trap, unless discrimination is defined as disparate treatment rather than disparate impact. Conscious and deliberate acts of discrimination are and ought to be subject to the full weight of the law. But applying objective standards rooted in common sense or historic practice that happen to impact disproportionately on those unable to meet them ought not open the door to massive federal intervention.

Enforcing federal affirmative action polices - including those, like the Voting Rights Act, which are not technically affirmative action but which share many of the same underpinnings - requires a vast and intrusive bureaucracy. Every employer with more than fifteen workers is bound by the Civil Rights Act of 1964 not to discriminate on the basis of race, sex, or national origin, a process supervised by the Equal Employment Opportunity Commission (EEOC). Every federal contractor or subcontractor with fifty employees and doing $50,000 worth of business with the federal government must have its own affirmative action plan, setting forth minority hiring goals and timetables - something very close to quota system - or must accept the government's version, compliments of the Labor Department's Office of Federal Contract Compliance Program (OFCCP) Review. The racial practices of banks, mortgage companies, and insurance companies come under special scrutiny, a task divided among the Federal Reserve Board, the Office of the Comptroller of the Currency, the Department of Housing and Urban Development, the Department of justice, and others. The Small Business Administration serves as a clearinghouse certifying the credentials of minority businesses to participate in set-aside programs. Agencies such as the Pentagon, as well as the individual uniformed services, have departments devoted to ensuring that numerical goals for minority contractors are met, not to mention their own recruitment and promotion goals. And, of course, a special election unit of the Department of Justice backed by the Civil Rights Division supervises or closely monitors state and local election procedures either under its original 1965 mandate to prevent the disenfranchisement of blacks or the 1982 amendments which effectively require the creation of "majority-minority" districts, that is districts including enough voters to virtually ensure the election of a minority candidate.

The massive federal enforcement machinery gives lie to the notion, conveniently propagated by affirmative action advocates, that the policy is just a trivial inconvenience to the white majority and other disfavored groups, rather like some legislator's favorite pork program. To the contrary, the issue of race preferences imposed by legislation or administrative fiat is at the core of this nation's value system and, unless checked, likely to become an even more searing divisive issue in the decades ahead as the number and political power of minorities increase and each group vies for its own designated slice of the pie.

Many find it offensive for government to have ventured so far in the direction of racial preferences. Andrew Sullivan, the editor of The New Republic, complains that "[l}iberalism was once the creed that said you were equal before the law. Parentage, gender, race, religion: none of that mattered. The individual citizen was what counted. Now, in extending the power of government further and further, in regulating the precise percentages of racial and other minorities in a whole range of activities and places, liberalism has become the very force it was born to oppose."

Sullivan, an Englishman, should not be surprised. In a very real sense, today's liberal federal establishment is the true successor to the British imperialists of yesteryear. The sun never sets on its administrative empire. No power may ever by yielded so long as some rationale exists for its exercise. No law should ever pass form the books for having achieved its purpose so long as a single alleged grievance can be cited to support its retention. No insult is too trivial, no cause too remote from effect, no public reaction too allergic even to suspend the remedy. Long after the battle has been won, the command still functions, thriving on old war stories and the ethic of an earlier day.

Given a devotion to equal outcomes at all cost, it is a very small step from the demolition of objective merit criteria to the proposition that race itself equals merit, a notion inherent in many of the corporate diversity programs still somewhat in vogue, but even more prevalent in the academic community. Few professional school honors carry both the prestige and practical clout of the notation "Law Review" on as graduate resume.

For generations, students in the top 5 percent to 10 percent of the first year law school classes have been invited to compete for as position on the publication that reviews important developments in the law and publishes scholarly articles. The successful competitor must be a good researcher and a competent writer with a flair for precision and accuracy. Upon graduation, he or she can choose among the best clerkships and the most lucrative prestige firms.

A few years ago, some University of Virginia law students complained that inviting only those to compete who did well their first year unfairly excluded the "late bloomers" who acquired the knack for taking law exams a bit later. So the Virginia Law Review - one of the nation's best - allowed students to "grade on" after their first year. But some still complained, this time that while they were not master test takers, they were excellent researchers and writers and should be allowed to compete on that basis. Once again, the editors yielded and a number of students were permitted to "write on" to the publication.

Unfortunately, in the fifteen to twenty years since blacks had been admitted to the formerly segregated institution, not a single one had ever made the Law Review. Anxious to change that situation, the editors considered "lowering the floor" for grade eligibility and adding a few points for "diversity," but, except for one black student, whose superb credentials had him on track for a position even under the old standards, no others were likely candidates. So the editors came up with the "Virginia Plan" for minority participation on the Law Review found that at least half the publications among the nation's top twenty law schools now select staff members whose preeminent qualification is the color of their skin.

Such activity finds intellectual shelter in the writing of the so-called critical race theorists, whose guiding philosophy is the deconstructionist notion that equal justice, including job selection by merit, in a racist society keeps blacks and other minorities in their place and is thus wholly unsuited to their needs. High on their agenda is the acceptance of blacks and other minorities in the nation's leading universities and law schools even if their academic credentials are sparse. and their published observations on racial issues not up to traditional standards of scholarship. Instead, as Professor Alex Johnson of the University of Virginia Law School has written, "When the scholar of color speaks to any racial issue, such as affirmative action... her viewpoint will be greatly informed as a result of her different experiences in our society as a person of color."

Harvard Law School's Randall Kennedy, by no means a conservative, finds this more an attack upon academic standards than institutional racism. "I do not want race-conscious decision making to be naturalized into our general pattern of academic evaluation,:" he writes. "I do not want race-conscious decision-making to lose its status as a deviant mode of judging people or the work they produce."

When a policy like racial preferences becomes infected with ideology, its adherents often seem impervious to mounting evidence that it is a dismal failure if not downright counterproductive, even when judged by its own goals. Since 1972 the National Association of Black Social Workers has opposed transracial adoptions, calling such adoptions "a form of genocide" and claiming, "Black children belong, physically, psychologically, and culturally in black families in order that they receive the total sense of themselves and develop a wound projection for the future." Backed by white liberals, the organization has influenced dozens of states and the federal government into policies that make transracial adoptions terribly difficult. Since 40 percent of all children available for adoption are black, the result has been to condemn tens of thousands of these children to languish in state institutions or foster homes when white coupes are ready and eager to become their adoptive parents. And to what end? A twenty-year study of black children adopted by white families conducted by Professor Rita Simon of American University found these children better adjusted, far better cared for, and no less conscious and proud of their racial heritage that black children adopted by blacks or remaining in foster care. As Elizabeth Barholet of the Harvard Law School observed, "The evidence is overwhelming that delay or denial of permanent placement injures children both in the short and the long term. At the same time, there is not a shred of evidence that transracial placement poses any problem of the children involved." At the initiative of Congress, Long-standing legal bias against transracial adoptions seems in the process of being eased.

Other examples are legion. The creation of majority-minority voting districts, at the insistence of the black political establishment and its white liberal supporters, has cost about a dozen Democratic seats in the House of Representatives, contributed to the Republican party takeover of the House and a corresponding loss of Black Caucus political power, accelerated the migration of white Southerners to the GOP - greatly increasing its representation in Southern state legislatures - and undermined, at both the state and federal levels, political objectives favored by most blacks.

In elementary and secondary education, black ideologues again backed by many white liberals, continue to demand black role models and Afrocentric curricula, though no evidence to date suggests that either had produced superior results. To the contrary, experienced teachers, - white or black - who themselves perform well on standardized achievement tests, together with school administrators who demand regular attendance, do make some difference, although given the conditions of poverty, out-of-wedlock births, drug usage, and high crime afflicting the inner city, there are limits even to what the best teachers and administrators can accomplish. As the virtues of Afrocentrism, few can match the assessment of Arthur Schlesinger, Jr.: The West need no lectures on the superior virtue of those "sun people" who sustained slavery until western imperialism abolished it (and, it is reported, sustain it to this day in Mauritania and the Sudan), who still keep women in subjection and cut off their clitorises, who carry out racial persecutions not only against Indians and other Asians but against fellow Africans form the wrong tribes, who show themselves either incapable of operating a democracy or ideologically hostile to the democratic idea, and who in the tyrannies and massacres, their Idi Amines and Bokassas, have stamped with utmost brutality on human rights."

Race preferences create dangerous precedents. Lance Morrow, the brilliant essayist for Time magazine, has warned that the "supposedly virtuous high road of race preference has taken the nation into dubious terrain." Compensatory unfairness may have surface appeal. But, in the end, it is "a flirtation with the devil, a deepening reliance on the principle that formed the foundation of slavery, the Ku Klux Klan and Jim Crow. This was the position at the center of apartheid and Hitler's Nurenburg laws." Strong language to be sure. But racial preferences enshrined into law are the first cousins to black separatism and black supremacy. They legitimize a sense of victim hood that entitles the bearer to hold grudges against individuals who did him no harm. Blacks entitled to enter Columbia University as a form of compensation are also, it seems, entitled to say of Jews, "Lift up the Yarmulke, and what you will find is the blood of billions of Africans weighing on your heads." Surely, some currently feel, a race entitled to a preference because whites hold a disproportionate number of managerial positions or because whites and Asians command disproportionate representations at the more selective universities is entitled to control the places of business in its own neighborhood. Surely, such a race has the right to protest the proliferation of Korean-owned grocery stores or a Jewish clothier planning to expand into space occupied by a black record shop. the fire at "Freddy's" in Harlem may have been set by a demented black racist, but the predicate was laid by black activist Al Sharpton, whose pretest demonstration claimed that it was somehow illegitimate for a Jew to expand his business in a black neighborhood. And the philosophical home for racial entitlements resides in the assortment of race preference programs managed by the federal and state governments.

The fathers of the civil rights movement understood the danger. Challenged in the early 1960's by the black separatist view of Malcolm X, Martin Luther King warned that "black supremacy is as dangerous as white supremacy... God is not interested merely in the freedom of black men and brown men and yellow me. Got is interested in the freedom of the whole human race." And Kenneth B. Clark, the distinguished sociologist whose studies on the psychological effects of segregation helped persuade the Supreme Court in 1954 to overturn segregation in Southern schools, told a New York Times interviewer in 1995, "I don't believe in preferential treatment. To me that is a form or racism..:

Whether in jobs or in university admissions, racial preferences have an effect opposite what had originally been intended in that they reinforce prevailing stigmas of black inferiority and create a predisposition toward separation. Glenn Loury has written that champions of race preferences have "a great investment in the idea of American as a closed society in which 'people of color' regardless of their individual merit suffer systematic disadvantage in the competition for economic and social benefits." This "exhibitionism of non achievement," he warns, becomes self-fulfilling.

Justice William O. Douglas recognized a similar danger in university admission, warning in a 1974 case, "A segregated admissions process creates suggestions of stigma and class no less than a segregated classroom, and in it might produce that result despite its contrary intentions.": Experience at hundred of college and university campuses proves how prescient were Douglas's concerns.

Again, this should surprise no one. Such scholars as Donald Horowitz of Duke University, Myron Weiner of MIT, and Thomas Sowell of the Hoover Institution, who have studied race preferences in societies as diverse as Indonesia, Malaysia, Sri Lanka, and Nigeria, have found that uniformly they do not work and often produce results opposite to those intended. Sowell has shown that temporary targeted preferences invariably expand to other groups or other fields such as employment, university admissions, government contracts, and political representation. The beneficiaries are invariably already comfortably ensconced in the middle or upper classes. Fraudulent claims for benefits multiply. Societal polarization is accentuated producing consequences form political backlash to civil war. In the end, the so-called remedy helps nothing.

In sum:

- Affirmative action is the practice of racial discrimination against whites or other unfavored ethic groups.

- It favors the less qualified over the more qualified.

- It is a systematic attack upon objective merit selection criteria.

- While increasing black enrollment at selective universities and expanding somewhat the pool of black entrepreneurs, it has brought few employment, educational, or income benefits to those most in need of help. and had distracted attention from the real causes of misery among inner-city blacks.

- As an ideology as much as a program, it has proven impervious to overwhelming evidence that it is counterproductive.

- It legitimizes negative stigmas and panders to the darker instincts of racial animosity.

- It has been broadened for political purposes to include beneficiaries who lack the historical claim of blacks for relief.

- It has shown a marked lack of success in other societies.

- Increasingly, it is being challenged successfully in the courts and in the political arena.

Why then does it persist? For one thin, a fair chink of today's affirmative action regime evolved quietly, at times even while those responsible for authorizing or implementing it assured the public they were doing no such thin. Sponsors of the 1964 Civil Rights Act said repeatedly that reverse discrimination as well as numerical hiring goals and timetables were the furthest thing from their minds. They also included a provision in the law purporting to protect the rights of employers to set standards as high as they would like and to use standardized tests to measure applicant qualifications. The first minority set-aside program was quietly inserted as an amendment to a non controversial bill in the late 1970's.

In practice, an assertive Equal Employment Opportunity Commission and complaint Supreme Court implemented the disparate impact standard that played such havoc with employment testing even as the Court itself claimed to be disallowing reverse discrimination. A far-reaching executive order created yet another agency (OFCCP) to implement and oversee affirmative action in the community of government contractors and subcontractors. The first out-and-out quota came out of an attempt by Richard Nixon's secretary of labor, George Shultz, and his assistant secretary, Arthur Fletcher, to correct the racially exclusionary policies of those policies or decisions was ratified time and again by Congress. In 1982, Congress also transformed the Voting Rights Act from a statute sweeping aside Jim Crow practices that had prevented blacks from voting across the South into a requirement widely interpreted as requiring the entire country to redraw electoral districts and procedures to elect the maximum number of blacks and Hispanics.

Underlying these efforts is a consciousness of the massive wrongs done to blacks by this society and the notion that, if one must err, it ought to b on the side of too much redress rather than too little. Charles V. Hamilton of Columbia University has articulate brilliantly the unique nature of the black experience in this country. Yew, he agrees, other immigrant groups suffered injustice and indignity, but they had come voluntarily. However injustice and indignity, but they had come voluntarily. However bleak their early experience, their situation was usually better than it had been in the "old country." They were grateful toward their adopted country. They were prepared to work hard and achieve in the private sector with no expectation that government was obliged to make their path easier.

On the other hand, "[b]lacks had to cease being property before they could acquire it." They alone suffered not just oppression and discrimination but dehumanization. By necessity, they looked to the central government for relief. The talent and energy of their of their leaders were devoted not to commercial enterprise, but to enhancing the community's wealth through private effort, but to waging the legal and political battles necessary to secure the most basic human rights.

For blacks and for whites, then the battle for civil rights became not only a commitment to freedom and justice, but also a measure of themselves as human beings. But when that battle was won, and the issue became what Shelby Steele has called an "iconography" public policy. This is a "policy that ostensibly exists to solve a social problem but actually functions as an icon for the whites, supporting the policy was a mark of social virtue, for blacks, racial power. Thus, advocates were loathe to abandon the policy even as its failure became manifest. "the perniciousness of an iconographic policy is that you cannot be against it with out seeming to be against what it purports to represent," Steele added. "the white who argues against affirmative action looks like a racist and the black looks like an Uncle Tom."

But a hard look at affirmative action today shatters the icon. There is no moral virtue in supporting a policy that corrupts the values it purports to serve. Nor is there any power in clinging to the rafters of a sinking ship.