According to columnist Carl Rowan, the Justice Department is "stoking the fires of racial conflagration" by rejecting racial quotas and classifications.
That would be a heavy charge even if the Civil Rights Division were committing every crime its critics charged during budget hearings last week before the House subcommittee on civil and constitutional rights. As architect of the Reagan civil rights policy, Assistant Attorney General William Bradford Reynolds aggressively proclaims the doctrine of "colorblindness," even though color-conscious remedies for racial wrongs have gotten a foot in the door.
In the 1978 Bakke case, the Supreme Court said that race may be considered as one (of many) criteria when universities allot scarce admissions to medical and other professional study. Later, in the Weber case, the court blessed "voluntary" hiring practices that discriminate in favor of disadvantaged minorities. Congress has added other legislated entitlements.
This is, like it or not, the law. And if Reynolds has "mental reservations" about it (in the words of one hostile witness), it is fair to ask whether his agency is vigorously enforcing it. But generally the charge that the Civil Rights Division is lax in fighting racial discrimination is idle: documented actions belie the charge.
The real problem is a political one--that Reynolds, in denouncing racial favoritism in the law, is flying in the face of recent fashion. In his Houston Lecture at Amherst, Reynolds set forth a powerful, indeed unanswerable, defense of the principle of colorblindness. He didn't say, as some reports suggested, that affirmative action is "morally wrong." He did say that a long series of judicial and congressional pronouncements "reflected a national consensus that racial classifications are wrong--morally wrong." The fact is indisputable.
Those who now blast Reynolds for speaking no less than truth work from a blatant double standard, contending that racial classification is wrong when it is done for "bad" reasons but right if done for "good" reasons. Still, the evil of racial classification springs from consequences, not motives--now as before.
Carl Rowan is dismayed that Howard University is arguing in a current faculty promotion case that black institutions have a special right to discriminate against whites. But if the Weber decision is right, is Howard University necessarily wrong?
During the great national debate over the Bakke case, a distinguished black lawyer was heard to argue that the 14th Amendment was especially designed to vindicate the rights of blacks, not, as it plainly says, of all "persons." With such sophistries abroad, Howard's wrongheaded argument is hardly out of the ballpark.
Thus the crux of the argument between Reynolds and his critics is this: shall the law be resolutely colorblind as to all? Or shall certain races or persons be given preferential treatment?
The argument for what may be called the reparations theory of law has some moral appeal, in view of the nation's history of gross racial discrimination. But as a principle of law, it can be treacherous. When the law favors some groups, it may penalize individuals who are disfavored for injuries they did not commit. The preferential theory of law carries the dubious corollary of hereditary or collective guilt.
The Reagan administration, perhaps because it lacks the internal political check of a strong black constituency, has gone farther than recent administrations dared do in advocating strict colorblindness. But the appeal of that standard, for which hard battles were fought in the 1950s and 1960s, is not dependent on political motive.
Reynolds and his colleagues at the Civil Rights Division deserve--at least--to be heard out in defense of colorblind law without being charged with "stoking the fires of racial conflagration." If racial impartiality in the law is something to set fires over, the country is in deep trouble.
Few Americans now dispute the fact that blacks were historically victimized in a special way and deserve special help catching up. But what kind of help? Help that creates new victims of a new kind of reverse discrimination can only prolong the cycle of injustice.