When the Reagan administration installed its own majority on the U.S. Civil Rights Commission last year, we optimists hoped that the commission might make itself more useful -- might move beyond its accustomed gadfly role and develop some interesting thoughts.
Instead, something strange and unfortunate has happened.
Where it once buzzed and chivvied the government over every imperfection, major and minor, the commission has taken up the ritual cry of "colorblindness" in response to nearly every civil rights challenge.
The latest example is the war of words that broke out when the commission issued a report on the Memphis firefighters case. In that matter, the Supreme Court had said something rather basic: When an affirmative action hiring program for public employees clashes with seniority rules, the affirmative-action plan yields.
It seemed a sensible and limited statement of priorities. But according to the Civil Rights Commission majority, the court had affirmed "that race and gender are not proper bases to reward or penalize any person." Not only does this gloss go well beyond what the court actually said; it establishes a rule so rigid that, under it, almost no affirmative action program could be justified.
This extreme view did not go unanswered. A commission minority, Mary Berry and Blandina Ramirez, were not to be outdone. The majority, they declared, had made a ghastly historical error. Civil rights laws "were not passed to give civil rights to all Americans," only -- and, it would appear exclusively -- to victims of historical discrimination, and to them alone!
Take degree away, and hark what discord follows. These two extreme views -- that, on the one hand, the law must be so utterly "colorblind" as to take no cognizance at all of race, sex or historical discrimination; that, on the other, it is so color or sex conscious as to protect no one who doesn't belong to a previously "disadvantaged" group -- blot out all the middle ground. They may please ideological constituencies, but they are practically useless as guidelines in the real world.
The best that can be said for them is that this is only the U.S. Civil Rights Commission, doing business at the old stand of punditry and prophecy.
"Colorblindness" was the constitutional value invoked by Justice John Marshall Harlan in 1896, when the court first upheld Jim Crow laws. It remained a valuable ideal when those laws came under siege half a century later, and a generation used to legal discrimination needed new ways to think about the law. But neither Harlan nor his successors of the '50s and '60s were appealing to a never-never land of absolute legal abstractions. They had in mind a practical standard of equity and impartiality in the law.
Colorblindness, understood in its historical context and meaning, has not outlived its relevance. But it is in danger of being appropriated to political sloganeering, calculated to call reasonable and useful, as well as invidious, remedies into question.
As if in reaction, Berry and Ramirez invoke a mirror image of colorblindness, according to which civil rights laws are the exclusive entitlement and turf of the disadvantaged. Indeed, had there been no racial segregation, we would need no civil-rights laws -- as, lacking the history of slavery, we might need no 14th Amendment. But converting historical truisms into legal doctrines serves no useful purpose.
Here is another manifestation of the ultra-individualism that seems to reign within the Reagan administration as an all-purpose standard. The worth of all government goals and programs depends on whether they meet the test of the invisible hand of competition. "Colorblindness" is the equivalent, in the civil rights field, of the mysterious "market forces" that supposedly make just apportionment of the world's goods.
The notion that there might be a larger community interest, apart from or transcending your narrow personal interest and mine, is set aside. Everybody for himself and the devil take the hindmost!