Copyright © 1999 by Paul F. deLespinasse, Adrian College
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"It is almost a matter of principle that in any difficult
unsolved problem the right method of attack has not been
found; failure to solve important problems is rarely due
to inadequacy in the handling of technical details."
(Fred Hoyle, Man in the Universe N.Y.: Columbia U. Press, 1966, p. 20.)
Poised for total victory, in the mid-1960's the civil rights movement managed instead to shoot itself in the foot. Today's United States reflects the continuing consequences of this wrong turn.
As the twentieth century neared its end race relations in the United States were as contentious as ever. Californians enacted Proposition 209, a complete repudiation of affirmative action as it was currently understood. Although many black voters supported this measure, others declared that it had put an end to any hope for black people. The mass media solemnly declared that public schools were once again becoming segregated. College and graduate school admissions policies with regard to racial minorities drew heated rhetoric and lawsuits from the University of Texas in the South to the University of Michigan in the North.
A race riot erupted in Los Angeles after a jury acquitted white police officers who had been videotaped beating a black man, Rodney King. Black rioters attacked not only white people but also members of other minority races, including Hispanic and Asian- Americans, who were doing business in black areas of the city. After the trials of superstar O.J. Simpson, public opinion polls revealed sharp differences between white people and black people regarding the propriety of his victory in the criminal case and loss of the civil case against him.
How could these things be going on a third of a century after the civil rights movement was so close to a complete moral and political victory? How could it be going on half a century after the Supreme Court's 1948 decision--- in Shelly v. Kramer --- that a "restrictive covenant" in a deed for property could not prevent a white owner from selling his house to a black person? As long as there was a "willing buyer" and a "willing seller," said the Court, the house could be sold to anybody. How could it be going on over forty years after Brown v . Board of Education (1954) proclaimed that segregated public schools were unconstitutional?
We also need to ask how the developments of the late 1990's could be going on in a country where the Voting Rights Act of 1965 had been on the books and fully enforced for over thirty years. The very enactment of the Voting Rights Act had reflected the increased political clout of black people and their political allies. And the Act itself had served to bring about a vast increase in the number of black people who participate in voting.
Thanks to the Voting Rights Act, the political environment within which elected politicians work changed dramatically. The political career of former Alabama governor George Wallace provides an interesting example of the consequences of this change in the political system. Early in his career, Wallace's racial moderation led to lost elections. He started winning when he shifted to a racist, "segregation forever" rhetoric. But after large numbers of black people started voting, thanks in large part to the 1965 Voting Rights Act, Wallace experienced another change of heart and began to acknowledge that humanity is more than skin deep. Who would want to run for office handicapped by the unanimous opposition of even a small minority of the population, if that small minority actually votes?
The Voting Rights Act was well-designed to checkmate the methods used to prevent black people from exercising their longstanding legal right to vote. Greatly increased voting by black people in turn made state legislatures and Congress much more sensitive to their interests and opinions. Oddly enough, it was the increased political power of minorities in the legislative branch of government which smoothed the way for the serious mistakes in civil rights policy whose consequences we are still experiencing.
Throughout history political and social progress moved governments forward on a road defined by characteristics which are now, looking backward, very clear. This main road to progress led from the original protection rackets towards regimes which offered people protection without any rackets. The road led from organizations of racketeers threatening people with pseudolaws toward legitimate governments operating totally on the basis of genuine laws. This road led from regimes operated entirely for the benefit of the organized criminals towards governments which seek only the general welfare.
Of course no society has gotten to the end of this road yet. All actual governments still have some elements of a protection racket. All actual regimes sometimes make decisions, not because they would be beneficial for people in general, but because they will be advantageous to the notables who run the government. All actual governments still employ some pseudolaws. But some countries have traveled far enough along this main road that we can glimpse the political terrain at the end of that road.
Continued progress along the main road will require us to eliminate all the remaining pseudolaws. Back in the early 1960's, many of these pseudolaws classified people on the basis of their race and required private persons and associations to do so. Getting rid of these pseudolaws was a principle goal of the civil rights movement, and as I have already indicated, a goal that was very important and entirely proper.
In a country like the United States there are two different ways to rid ourselves of pseudolaws. The first and most obvious way is for legislatures to repeal them or convert them into genuine laws applying to everybody, making no reference to the race or any other specific characteristics of the person who violates them. The second way to eliminate a pseudolaw is to get a court to declare it unconstitutional.
The U.S. Constitution is well-endowed with words which can be used to justify or even require the striking down of all pseudolaws. The best language of all for this purpose is the Equal Protection clause of the Fourteenth Amendment: "nor shall any state . . .deny to any person within its jurisdiction the equal protection of the laws." The Fourteenth Amendment restricts only actions by the state governments and there is no similar constitutional language limiting the federal government. Plausibly, however, in a 1954 companion case to Brown v. Board of Education the Supreme Court ruled that the Due Process clause of the Fifth Amendment, which does apply to the federal government, implicitly requires the federal government to comply with Equal Protection.
Since the Constitution can plausibly be interpreted to forbid all pseudolaws, no legislative action was necessary to get rid of the pseudolaws requiring racial segregation and discrimination. The purely negative action of striking these pseudolaws down could have been handled quite well by the courts.
Of course the mere fact that legislative action was not absolutely necessary to finish off racist pseudolaws does not mean that such action would be undesirable. Action by the legislatures would also have been reasonable. Legislative repeals would also have been reasonable.
Unfortunately, once legislative action became politically possible, the legislatures did not confine themselves to repealing pseudolaws or converting them into laws.
Civil rights leaders were well-aware that many bad things were being done to black people when no government officials were anywhere in the vicinity. It was not just government which discriminated against people on the basis of their race. Indeed, a very high percentage of actual discrimination appeared to originate from private persons and private organizations--- corporations, universities, labor unions, etc.
Eliminating all racist pseudolaws arguably would do nothing to end the injustices caused by this private discrimination. For example, imagine that a pseudolaw prohibiting black people from being employed in a certain line of work is repealed or struck down by the courts. Getting rid of that pseudolaw would make no difference to a black person unable to get such a job because employers still refuse to hire him or her.
There was, no doubt, a massive amount of private prejudice and discrimination against black people in the United States. And sure enough, the job situation for black people did not change very much when the pseudolaws requiring segregation and discrimination began to fall. Black people remained concentrated in low-paying, low-status jobs. School enrollment patterns did not change appreciably even after the Supreme Court had struck down de jure segregation in 1954. The 1948 ruling against restrictive covenants and other court decisions forbidding race- based zoning laws did not lead to major change in residential patterns and most people still did not live in racially-mixed neighborhoods.
It seemed rather natural, no doubt, to draw certain conclusions from all of these unpleasant facts: if private discrimination is bad and does not go away when it is no longer legally mandated, perhaps we need to make it legally prohibited.
Perversely, the previous pseudolaws commanding people to discriminate, whether they wanted to or not, were a precedent for enacting rules making discrimination illegal. In Plessey v. Ferguson, it was Louisiana state "law" which required passenger trains to operate separate cars for white and for black passengers. The railroad had to run separate cars, thus reducing its operating efficiency, without regard to the desires of its management. The states in which public schools were required to be segregated likewise prohibited local areas from operating non- segregated public schools even if the people there and their representatives on the school board wanted to do so. Some states even prohibited private schools from allowing mixing of students of different races.
If you can have laws requiring people to discriminate, why can't you have laws requiring people to stop discriminating?
The Civil Rights Act of 1964 was actually a collection of rules dealing with several different issues. The most important sections prohibited racial discrimination in places of public accommodation (hotels, motels, restaurants, etc) and discrimination by employers.
The rule against discrimination in public accomodations quickly produced very noticeable and beneficial results. Its meaning was clear. Proof of violations was straightforward. Courts had ample experience applying this kind of rule because it was merely an extension of age-old common law rules prohibiting innkeepers from refusing to serve travelers without good reason. The 1964 provisions against discrimination in public accomodations could have been stated as a simple requirement that public accomodations accept customers "first-come, first- served (with reservations accepted on the same basis) without making much difference in how they worked.
The attempt by the 1964 Act to outlaw racial discrimination by employers, however, produced much less satisfactory results. This part of the law also was not totally unprecedented. Back in the 1930's, when Congress nationalized the regulation of labor-management relations, workers were given a right to bargain collectively with their employers if they so chose. There was a fear that employers might prevent exercise of this right by firing or refusing to employ people who favored unionization. Congress therefore made it an "unfair labor practice" for employers to discriminate against workers on grounds of participation in or advocacy of labor unions. The Civil Rights Act of 1964, following this precedent, made it illegal for employers to discriminate on the basis of the race of their employees or would-be employees.
Unlike the open accomodations provisions, the employment discrimination rules appeared to have little effect on patterns of employment. Employers insisted that they were not discriminating, that they were merely applying objective standards to all applicants for employment and employees seeking promotion. Critics pointed out that few black people were being hired or promoted into the more responsible and lucrative jobs. They raised questions about the validity of and motivations underlying the use of standards such as aptitude tests and degree requirements, etc. by employers. Perhaps antidiscrimination law was not going to be able to solve the problems of racism in employment.
Affirmative action emerged as a strategy to move things forward in employment and higher education when the antidiscrimination rules such as those in the Civil Rights Act of 1964 appeared to be inadequate. There was never any question of affirmative action in public accomodations, since the Civil Rights Act had pretty much fixed this problem. Claims of occasional accomodations discrimination were still surfacing in the 1990's--notably against the Dennys restaurant chain and Motel 6--but nobody seemed to think that this was a major problem any more.
Precedent for affirmative action in employment and higher education could be found in efforts to eliminate de facto segregation of the public schools after prohibition of de jure segregation had produced rather few results. Assuming that "racial imbalance" in public schools was the real evil, and that the reasons why that racial imbalance existed were irrelevant, the courts began insisting on measures to bring about racial balance. That is, each public school in an area should have roughly the same balance of white students and black students as that which existed between whites and blacks in the general population of that area.
Different techniques were used from time to time and from place to place to try to balance the public schools. Sometimes the desired balance could be achieved simply by redrawing boundaries between neighborhoods served by particular schools. Sometimes extra resources could be pumped into schools in predominantly black neighborhoods in hopes that the excellent educational opportunities thereby created would exert a "magnetic" force on white students from other parts of town to volunteer to attend that school. Sometimes schools were ordered to bus students of certain races to schools in other parts of town--further from their homes--in order to achieve the desired balance of the races. "Busing" became a term of art, with a very negative connotation in white circles and also, but to a lesser extent, among some black parents who also regretted loss of the benefits of having their children attend schools in their own neighborhood.
Busing was not very successful in bringing about schools with mixed racial makeup. White families sometimes moved out of residential areas affected by the busing in order to escape it. There was nothing illegal about moving. Many who did not move shifted their children to private schools, which also was not (and, according to an early decision of the Supreme Court, could not be) illegal. In spite of the limited success of busing, this experiment meant that treating people on the basis of their race for the purpose of promoting racial togetherness was not a novel idea when demands arose to apply affirmative action to the employment relationship.
At first, of course, affirmative action in employment was not understood to contemplate any such "reverse" discrimination--i.e. treating people on the basis of their race for the purpose of promoting interaction among the races rather than keeping them separate.
Initially, the words "affirmative action" were found in the context of language requiring employers to take affirmative action to consider applicants without regard to their race. In other words, affirmative action was merely an extension of the requirement that employers not discriminate on the basis of race, that they not take people's race into account in their decisions as employers. Affirmative action went beyond merely making each employment decision strictly on the merits only in that it also urged employers to cast their nets more widely so as to bring opportunities to the attention of qualified minority persons.
The logic of this early affirmative action was approximately the following: Minorities, especially black people, had become too discouraged even to apply for certain kinds or work or for admission to certain kinds of universities. Having been rebuffed repeatedly when they did knock on certain kinds of doors, black people could reasonably say, "Why bother?" Why waste effort knocking on doors that will not open to me? What is the use?
Although grounded in experience, "why bother" had become an obstacle to the progress that had now become possible. Even a color-blind employer would not hire many black people if few of them applied.
Affirmative action, then, in its original sense was designed to overcome feelings of futility among black people. Special efforts to advertise opportunities in publications especially targeted to minority people symbolized employers' interest in finding talented workers no matter what skin color it came packaged in. The bottom line was that employers should encourage applications from a broader range of people but then decide on individual applications on the merits as they (the employers) saw them.
Unfortunately, this approach to affirmative action did not produce the desired results. Few black people were still getting the better jobs and vast statistical disparities between the employment of black people and white people remained.
When this was noticed, affirmative action was redefined by certain judges and government administrators. Affirmative action no longer was to mean casting nets more widely but then deciding in a colorblind manner. As Supreme Court Justice Blackmun later was to put it, "to get beyond racism, we must first take account of race."
At this point the Supreme Court began striking down hiring procedures such as standards and tests that produced disproportionate results for white applicants and black applicants unless the employer could prove that the tests or standards were strongly related to the actual ability of individuals to do a specific job. Correlation with ability to do good work in general was not regarded as relevant. Such proofs were difficult to come by and, for smaller employers or even large employers who hired only a few people to do certain kinds of work, prohibitively expensive.
Courts also began treating employment patterns where minorities were "underrepresented" (in terms of a proper racial balance) as prima facie evidence that illegal discrimination was going on. This would shift the burden of proof to the employer to show that it was not discriminating, a shift that verged on abandoning the classical rule that people accused of a crime are to be presumed innocent until proven guilty beyond all reasonable doubt.
For employers, the safest strategy appeared to be to hire enough minority people to balance their work force. Even though double standards and quotas were supposedly not required by federal law, the law had put employers in a predicament where double standards and quotas became attractive strategies.
Double standards and quotas, however, were very unpopular among non-minority people. Since they were attempts by employers to avoid getting into legal trouble under the civil rights laws, political support for these laws began to ebb.
The new affirmative action, however, did produce one very desirable result. By subjecting white people, especially white males, to apparent discrimination, it gave many of these people a taste of the same bitter medicine that "they" (or at least people like them) had been inflicting on minority people. Suddenly, a genuine enthusiasm for the antidiscrimination laws began to develop among the white population.
The older form of affirmative action was obviously compatible with the antidiscrimination principles expressed by the Civil Rights Act of 1964. For employers or universities to solicit applications from a broader range of people could not be considered discriminatory. And the old affirmative action did not contemplate any kind of quotas or reverse discrimination in the actual selection of employees or university students. Actual decisions by personnel administrators and admission departments were supposed to be color blind.
The new affirmative action was a completely different matter, even though it shared a name with the old affirmative action. The new meaning that was judicially and administratively imposed on the old words required that people be treated on the basis of their race. Only by doing this could racial balance quickly be achieved in workplaces and universities.
The antidiscrimination rules in the 1964 Civil Rights Act, however, appeared to prohibit treating people on the basis of their race. Paradoxically then, if the 1964 Act were applied evenhandedly, it would prohibit not only discrimination for the purpose of promoting racial separation but also discrimination for the purpose of promoting racial togetherness. Senator Hubert Humphrey, a key leader during enactment of the 1964 Act, unequivocally said that preferential treatment was not only not required by the Act, but actually outlawed by it.
One of the troubles with legislative history, of course, is the freedom of courts to quote it selectively rather than in a principled way. And few people would argue that the 1964 Act has been applied in any kind of principled or consistent way by the courts. Instead of interpreting it to prohibit certain kinds of action, for some time the courts interpreted it to prohibit such actions if and only if they are taken for bad reasons or in pursuit of a bad objective such as racial separateness. If what appears to be identical actions are taken for good reasons or in pursuit of a good objective such as racial togetherness and "balance," the courts not only did not find illegality, they found that said actions were required by the Civil Rights Act.
In the next chapter we will examine in detail the problems with the legal logic of the parts of the Civil Rights Act dealing with employment. For present purposes, though, it is enough to note that if it were interpreted in any kind of way that is true to congressional intent, the 1964 Act would clearly outlaw the new affirmative action of preferences, reverse discrimination, and quotas.
Some conservative critics of affirmative action say that we ought to get rid of it. If we would just enforce the antidiscrimination rules in the 1964 Act, they maintain, it will take care of any remaining racial problems. I believe that these critics need to rethink their analysis. I believe that they have gotten things exactly backwards. They have failed to notice that their recommendation, supposedly based on principle, comes into profound conflict with some of their other principles.
My conclusion will be quite different. I will not suggest that affirmative action in either of its senses be banned or considered illegal under the Civil Rights Act of 1964 or any other law which actually exists or could be enacted in the future. Instead, I will propose that the parts of the Civil Rights Act provisions dealing with employment discrimination be repealed or struck down as unconstitutional.
Once employment discrimination rules have been cast aside, affirmative action in both senses of the term will be completely legal. Individuals, corporations, and other organizations will then be free to decide whether to engage in affirmative action. They would neither be compelled to do so nor prohibited from doing so.
In the meantime, it is symptomatic of the pickle that the civil rights movement has gotten into that one of the principle means it has backed (affirmative action) is fundamentally incompatible with another of the means that it has also backed (antidiscrimination law). Of course an unprincipled invoking of principles is not unusual in political life. Politicians and political activists often will brandish a principle when the consequences of following it are to their liking but forget about it or even proffer a contradictory principle in situations where they do not like its implications.
One had hoped for better things, however, from the civil rights movement. Here was a movement whose legitimacy rested on basic moral propositions about men and society. Here was a movement which long focused its hopes uniquely on the courts, the government organs which are supposed to be the most principled actors in our political system. In judicial decisions, of all places, principled consistency is respected and even demanded.
As a result of the conflict between antidiscrimination law and affirmative action, the courts and other actors got drawn into a very unseemly game in which "discrimination" was repeatedly redefined in an effort to eliminate or paper over the conflict. It was urged that only members of the majority race can "discriminate" and only members of a minority race can be discriminated against, but this attempt foundered in discussing South Africa. It was urged that even though it looks like discrimination and feels like discrimination, it is not discrimination if promotes an end desired by people who have been oppressed. It was argued that "stigmatization" is the real key, that discrimination against minorities stigmatizes and thus harms them, whereas discrimination against members of the majority does not harm because it does not stigmatize. These creative efforts to redefine discrimination were not successful.
As we will see in the next chapter, even-handed application of antidiscrimination law would be a contradiction in terms. Perhaps this is because antidiscrimination law is not law in the first place. In any event the conservative critics of affirmative action are profoundly mistaken and need to rethink their position. Antidiscrimination law is what is intolerable; it is the key to unraveling the current mess in U.S. race relations; it is the subject to which we now turn.