Consider Vernon Jordan's cab criterion. Jordan says: put Brad Reynolds on one street corner and me on the other. Let us both hail a cab, and see at which corner the cab stops. Jordan is black; Reynolds, assistant attorney general for civil rights, is white; and Jordan is right: racism remains. He is wrong in arguing that this justifies government policies preferring one race.
Jordan recently attacked Reynolds for a speech in which Reynolds praised the principle that was until recently the cardinal tenet of the civil rights movement: that the use of race to justify treating individuals differently can never be legitimate. Jordan called the administration in which Reynolds serves hostile "to black people and to the very concept of a decent society."
Well. In 1896, the Supreme Court held that Mr. Plessy, who was one-eighth black, could be excluded by law from "white" railroad carriages. Justice John M. Harlan dissented: "Our Constitution is color blind. . . . The law . . . takes no account of . . . color." In 1954, Thurgood Marshall, the NAACP's lawyer in the school cases, said that all anyone could reasonably want is that "children be assigned a school without regard to race or color." In debate about the 1964 Civil Rights Act, Hubert Humphrey said the act "would prohibit preferential treatment for any particular group."
Until the late 1960s, Harlan's dissent expressed the civil rights movement's aspiration. Then that movement began seeking racial entitlements. As Alexander Bickel wrote, suddenly Americans were supposed to unlearn the lesson that discrimination on the basis of race is inherently wrong, and to learn "that this is not a matter of fundamental principle but only a matter of whose ox is gored."
If Harlan was right, Reynolds is right and Jordan is wrong. If Marshall was right in 1954, he is wrong now when he supports forced busing of children assigned to schools on the basis of skin pigmentation. If Humphrey was right in 1964, the civil rights movement is wrong in 1983. For associating himself with Harlan, Marshall and Humphrey, Reynolds is called a racist. But the ferocity of the attacks does not disguise the apostasy of the attackers, or drown out this insistent question: by what criteria will those who now oppose a colorblind legal code say the nation is ready for such a code?
Jordan says that because America has discriminated against blacks, it needs a "temporary period" of "positive discrimination" favoring blacks. But the period will be perpetual. Jordan says the law cannot be racially neutral until "society" is neutral. And proof of society's neutrality will be--what? Inevitably the criterion will be equality of attainment.
The NAACP's Benjamin Hooks cites the paucity of blacks on corporate boards and in university presidencies and says reverse discrimination will be needed until America "begins to treat all of its citizens alike." Inevitably, equal outcomes will be considered the only proof of equal "treatment."
Jordan says: "Colorblindness makes sense in a context of a society that has already dismantled its structures of discrimination. Racial neutrality makes sense in the context of a society in which advantage does not accrue to any given race." But the fact that "advantage" accrues unevenly among the races is not proof of discriminatory "structures," and certainly does not justify intentional discrimination by race-based laws.
Policy certainly should strive to overcome what Jordan calls "the ravages of unequal history." But not all values should be sacrificed to that. A thoroughly integrated society is desirable; a colorblind legal code is, as the civil rights movement formerly said, mandatory.
Jordan rightly says that the wrong done to past generations of blacks by state- sanctioned discrimination was directed against a caste, not individuals. He wrongly says that that means the "remedy" can properly be a group remedy involving racial entitlements for persons who are not victims of such discrimination and injuring whites who are not guilty of discrimination. The fact that a contemporary injury to whites may be symmetrical with a past injury to blacks does not dignify the injurious policy as a "remedy."
Jordan says racial preference for blacks does not cause "undue hardship" for the white majority. That is true in the sense that the injury is done to a relatively few individuals. But what is irredeemably pernicious about racially based government action is precisely that it teaches disregard for individuals, and teaches the doctrine that rights do not inhere in individuals but derive from race membership.
To my friend, Vernon Jordan, I ask: do policies that legitimize racial thinking, that taint black achievements and stigmatize blacks as wards of the state, in perpetuity, hasten the day when cabdrivers will be colorblind?