Civil Reconstruction: What to Do Without Affirmative Action

The time is approaching when we will have no alternative but to find a new road to equal opportunity in America.

With the confirmation of Clarence Thomas, the Supreme Court now will likely have a black justice among the majority when it votes to overturn Regents of the University of California v. Bakke, the 1978 decision upholding affirmative action at public institutions. The Court may also overturn or restrict the precedent set in United Steelworkers v. Weber, the 1979 decision approving private affirmative action plans. These cases, like others concerning affirmative action that came before the Court prior to 1989, were originally decided by narrow majorities that no longer exist. Bakke and Webe, for example, were both decided by 5-4 votes, and in Bakke no opinion represented more than four justices. In 1989 the Court seems to have taken a decisive turn when it voted 6-3 in City of Richmond v. J.A. Croson Co. to throw out Richmond's requirement that city contractors set aside 30 percent of the value of subcontracts for minority-owned businesses. The majority in Croson, except for Justice Stevens, supported criteria for race-based remedies that appear to rule out most governmental affirmative action programs. And of the three dissents from Croson, two came from recently retired Justices Thurgood Marshall and William Brennan.

On affirmative action, Justice Thomas will probably give the Court's conservative bloc not only an additional vote, but a legitimacy that an all-white majority would not have had. How quickly the Court's decisions will come, or how sweeping they will be, is not clear. But the prospect of a sharp curtailment of affirmative action, or even its end as we have known it, should awaken us to the world that lies ahead and force us to think through alternatives.

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Americans concerned about reducing racial inequalities ought to look, it seems to me, in two directions -- toward the reconstruction of civil society in minority communities and toward the promotion of broad policies for economic opportunity and security that benefit low-and middle-income Americans, black and white alike.

Building up civil society means strengthening "intermediate" institutions, lying between the state and the individual, such as community associations, schools, media, and independent social agencies, which provide the organizational foundation for collective development and effective public representation. Because of the legacy of slavery and discrimination, black institutions have never had the capital resources of comparable, predominantly white institutions. Rather than trying to come up with new preferential policies to redistribute individual opportunity in educational and job competition -- thereby generating hostility among those who feel their own personal opportunities have been sacrificed -- liberals should support a renewal of minority institutions, backed by fresh capital support. This approach can survive a conservative Court and even create opportunities for cooperation across ideological lines, drawing together liberals and conservatives, black separatists and integrationists.

Inevitably, however, this program would confront limits due to wider economic and social problems that hit blacks and Hispanics with particular force, such as a slack economy and scarce employment opportunities, eroding incomes in lower brackets, lack of access to health care and rising costs, and increased child poverty. But rather than address such problems with racially targeted programs, we should consistently emphasize broad-based, race-neutral policies that make sense on their own -- for example, public investment, national health reform, an enlarged earned income tax credit, child support assurance, and other policies benefiting families with young children. Widely supported programs that promote the interests of both lower- and middle-income Americans -- and that deliver substantial benefits to minorities on the basis of their economic condition -- will do more to reduce minority poverty than narrowly based, and hence poorly funded, measures for minority groups or the poor alone. These efforts can also be designed to dovetail with intermediate institutions and thereby to contribute to the overall process of civil reconstruction and renewal.

Neither of these approaches implies any diminished commitment to fight racial discrimination. But the fight against discrimination will generally have to be pursued with means provided by civil rights law other than preferential hiring and similar practices adopted under the rubric of affirmative action. This will be hard for many liberals and progressives to accept. But the judicial and political obstacles to maintaining preferential policies have become overwhelming.

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Affirmative action has taken on high symbolic importance, not because of its objective impact on economic opportunities, but as a result of a kind of "antagonistic cooperation" between its opponents and supporters. On the one hand, Republican opponents have found it politically useful to attack "quotas" to pry away white support from Democrats. On the other hand, with the retrenchment of other federal social programs, minority representatives have fought hard to hold on to one policy in their favor not dependent on the federal budget. Together, the two sides have exaggerated the effects of affirmative action, confusing them with the broader and less controversial achievements of the civil rights revolution.

Originally, affirmative action meant outreach for minority candidates for college admissions, jobs, and contracts; in that sense, it does not raise constitutional problems. Affirmative action has also, however, come to refer to a policy of racial preferences in decisions about educational and economic opportunities, designed to remedy either a historic pattern of discrimination in a particular institution or general, societal discrimination or to achieve balance or diversity in line with contemporary demographic patterns. The constitutional and political problems concern affirmative action in this second sense, especially where the justification lies in broad societal purposes rather than remedying a demonstrated pattern of discriminatory practices in a specific firm, governmental body, union, or university.

For many, affirmative action in the extended sense has become a litmus test of loyalty to civil rights and minority interests. But it has never been a good test. The direct effects of affirmative action on the structure of opportunity have been modest, and its broader social and political ramifications at best mixed. As William Julius Wilson has written in these pages, affirmative action has probably helped those members of minority groups best poised to take advantage of opportunities for higher education and the professions, but it has done little for the poor. Wilson's critics sometimes say that it is unreasonable to expect affirmative action to alleviate poverty. Yet if there were no poverty among racial minorities, affirmative action would not have had much moral claim in the first place.

Affirmative action has improved minority representation in the professions and at some corporations, universities, and public agencies. But while this is a genuine positive benefit, it has not come without cost. Even the predominantly middle-class members of minority groups who have directly benefited from affirmative action have been hurt by its unintended social and psychological side-effects. For on one point, I believe the critics of affirmative action have been right: Affirmative action policies have helped to perpetuate racism. In educational institutions, whites are inclined to believe that blacks have been admitted with lower scores and lesser abilities and accordingly expect blacks to perform less ably than whites. These expectations are an insidious by-product of a well-intentioned policy. In the workplace, too, affirmative action provides a basis for expectations and attitudes that used to be based wholly on prejudice. Suspecting that whites harbor doubts about their competence, blacks understandably feel embattled, angry, and resentful. The whole atmosphere of race relations is poisoned.

While ineffective as a strategy for reducing minority poverty, and indirectly contributing to the persistence of racism, affirmative action has taken a big political toll: deep and continuing antagonism from whites, particularly in the working class, who believe their personal opportunities are being taken away from them by a coalition of minority groups and liberal elites. The result has been more political support for the right, and less chance of enacting the kind of positive legislation that would especially benefit low- to middle-income Americans of all races.

Many supporters of affirmative action simply want to close their eyes to its perverse social and political consequences; others recognize those effects but feel they must be combated or, if unavoidable, endured. Conceding any criticism of affirmative action has seemed to them tantamount to intellectual surrender. They see no progressive alternative. A Supreme Court decision against affirmative action, however, should make a search for liberal alternatives not only respectable, but urgent.

* * *

Exploring alternatives, however, may not be the first impulse in the wake of a Court decision overturning Bakke or other precedents. At that point, many liberals and progressives will turn to Congress to reverse the Court, as current civil rights legislation reverses several recent Court decisions regarding job discrimination. But in overturning Bakke, the Court may virtually preclude any congressional reversal by ruling racial classifications and preferences constitutionally impermissible, except as a narrowly tailored remedy in specific cases of discrimination. On the other hand, in restricting or overturning Weber, the Court would be revising its interpretation of a civil rights statute, and Congress could respond with a statute giving explicit approval to private affirmative action plans.

Yet while Congress could respond to a reversal of Weber that way -- and many liberals will demand that it do so -- this seems highly unlikely to happen. Democrats are now all too conscious of the price they have paid for appearing to be the party of quotas. Politically, affirmative action is not like abortion. The defense of abortion rights can be carried into the political arena with good chances of success because there is ample public backing for those rights -- in many states, strong pro-choice majorities. Affirmative action, however, does not enjoy that level of public approval. Opinion surveys, in fact, show wide majorities against it. A September 1991 New York Times-CBS News poll, for example, asked whether preferences should be given to black applicants if a company had discriminated against them in the past. Even on this question, which presented affirmative action as a specific compensatory remedy, 60 percent opposed any preferences, and only 20 percent said preferences were justified. (The remainder thought it depended on circumstances or had no opinion.) Because public support is weak, civil rights groups have hesitated to seek explicit legislative authority for preferential hiring, even in the case of the federal government, where it rests on an executive order signed by President Johnson in 1965.

Nonetheless, the curtailment of affirmative action may mean less than is generally expected. First of all, much of what is conventionally attributed to affirmative action will be sustained under antidiscrimination law, including the 1991 civil rights legislation (although this may be complicated if the Court unleashes a new wave of reverse discrimination lawsuits). Furthermore, affirmative action is now a firmly established institutional practice, indeed virtually a reflex of many university, corporate, and political decision makers. (As Mr. Bush's appointment of Clarence Thomas illustrated, even conservatives need the legitimacy of multiracial representation.) Just as discrimination did not end with formal rulings against it, neither will affirmative action end with formal rulings.

This may seem like a strange argument for its survival. But white Americans' ambivalence about race has two sides. Prejudice against blacks and Hispanics and a countervailing preference in their favor, racial exclusiveness and egalitarianism, coexist in the same people, producing reactions toward racial minorities of fear and rejection in some contexts and a solicitous, sometimes patronizing bending-over-backward in others. White Americans might best be rid of both types of response, but while one persists, so will the other.

A formal ruling against affirmative action will also be at least partially blunted as
some institutions find functional substitutes for racial preferences under the rubric of more general, non-racially defined policies promoting diversity. In university admissions, there is already a move afoot to adopt affirmative action for the socio-economically disadvantaged of all races. Because blacks form a higher proportion of the disadvantaged, they could benefit from such a policy. But, as Andrew Hacker has recently pointed out, socioeconomic affirmative action in college admissions will mainly benefit whites and Asians, not blacks -- at least not until there is more progress in minority education at earlier ages. If educational inequalities are to be reduced, that is surely where the emphasis must be. To expand minority opportunities for college, we should also seek to strengthen historically black institutions and to enact a broad, progressive program for the financing of postsecondary education. Here, as elsewhere, we need complementary strategies -- communal self-development and race-neutral social policy.

* * *

Among black Americans, the ideal of communal self-development has had both conservative and militant expressions. The conservative vision of communal self-help conceives it as the opposite of state help: As self-reliance is to the individual, so communal self-development is to the group. Self-sufficiency has an obvious appeal to the many Americans who believe, often mistakenly, that people of their background rose by sheer grit, without benefit of state support. In this sense, the strategy of self-help is an accommodation to the dominant groups and national mythology. In contrast, the militant version of communal self-help sees it as the means of realizing separatist and nationalist aspirations. In its separatist form, the strategy represents, not an accommodation to the dominant culture, but a withdrawal from it into an ethnic enclave.

Yet support for communal self-help ought not to depend on either of these views. Communal self-development need not exclude complementary support by the larger society and state, and it need not imply or represent any sort of collective withdrawal from it. On the contrary, communal self-development seems more likely to flourish with access to resources beyond those the minority community itself can provide. And, rather than leading to withdrawal, strengthened intermediate associations can help to mobilize political participation. If conventional civil rights approaches have aimed at individual integration, the strategy of communal self-development aims at a kind of collective integration: putting minority institutions on a more equal footing with those of society's dominant groups.

Before the revolutions of 1989, much of the effort to open up Eastern Europe -- notably the foundations established by the Hungarian-American financier, George Soros -- focused on the renewal of civil society. In practice, that meant developing and sustaining a rich variety of association-al life, from the seemingly trivial and politically innocent (chess clubs, historic preservation societies, music groups) to the politically dissident and outspoken (independent newspapers, reform organizations). The problems of recreating civil life after the devastation of communism are obviously different from those of reconstructing community life in America's ghettoes and fighting minority poverty. But, in both cases, there is a fundamental need to overcome social isolation and cultivate the indigenous forms of organization vital to a flourishing community life, economic development, and effective political power.

* * *

A concern with the development of civil society in minority communities has a cross-cutting appeal -- to conservatives, because it emphasizes nongovernmental means; to minority communities, because it conveys respect for their autonomous and indigenous institutions; to the public at large, because it favors the kinds of institutions that promise to bring order and stability to violence-torn ghettoes.

Some liberals and progressives may worry that support for community self-development is tantamount to an acceptance of separatism. But other ethnic and religious groups have strong communal institutions without anyone raising the specter of separatism. Those institutions have, in fact, facilitated their integration into the society. Even if some black institutions have a separatist philosophy, the history of the black community and the economic realities of American society strongly suggest that separatism is unlikely to command general support from black Americans.

Others may object that an emphasis on community self-development is reminiscent of community action programs of the 1960s -- reminiscent, yes, but the same, no. Those programs typically sought to create new organizations, while this approach calls for building on the affiliations and associations already in existence. In addition, the emphasis here would be on capital support, and money could be disbursed as "challenge" grants, requiring additional fund-raising to help diffuse and reinforce practices of communal savings and investment.

* * *

But will white Americans be willing to devote any substantial resources to this enterprise? Does white America owe black America resources for community self-development? I think it does, although I recognize the difficulty of persuading a public already restive about taxes that they owe what amounts to -- let us use the correct word -- reparations. Slavery and its aftermath deprived blacks as a community of opportunities to accumulate wealth. Even today the black middle class is not at all comparable to the white middle class in wealth. Overall, according to a study based on 1984 data, black households have only one quarter the net worth and 11 percent of the net financial assets of white households. Astonishingly, white households with annual incomes between $7,500 and $15,000 have higher mean net worth and net financial assets than black households making $45,000 to $60,000.4 The lack of assets is not just an individual problem; the black community as a whole stands to inherit relatively little wealth from one generation to the next.

I am not under any illusions that a program of reparations can now be sold to the electorate. But I do find it conceivable that private philanthropy would recognize such obligations and lay the groundwork for a new National Endowment for Black America, to serve as a mechanism for receiving capital contributions and supporting a variety of social and cultural organizations in the black community. (It could also support the development of minority businesses with programs aimed at fostering entrepreneurship.) Once in existence, the endowment might gradually become recognized as a primary, legitimate mechanism for receiving public as well as private funds and providing capital support to black institutions.

As the careful reader will have observed, I have increasingly used the word "black" rather than "minority." This is not by accident. While strengthening intermediate institutions among Hispanics and other minorities would also be worthwhile, I believe the obligations of the United States to black Americans are historically singular. It is to black institutions that reparations should properly be paid. And because the problems of social isolation and decline of civil society are more acute in the black ghettoes, the case for emphasizing civil reconstruction in black America is especially strong.

But would a National Endowment for Black America be subject to the same criticism as affirmative action and likely to generate the same white opposition? The crucial difference is that this approach provides resources to institutions rather than individuals and thereby sidesteps charges that compensatory programs undermine meritocratic standards. Unlike affirmative action, it does not affect decisions about individual careers and thereby avoids generating the sense of personal grievance that affirmative action has produced among some whites. As I imagine it, the National Endowment for Black America would be a private institution -- the private, race-specific branch of a strategy whose public branches are race-neutral.

* * *

Even with much greater capital support, however, community self-development will fail unless combined with broader social policies. The example of higher education is illustrative here. America's major universities benefit from large capital endowments, but none of them draws most of its operating revenue from those endowments. Large numbers of tuition-paying students from affluent families help defray the institutions' costs. Even if some historically black colleges had comparable endowments, their students' families would not be able to pay comparable tuition.

Moreover, the opportunities of black students at predominantly white colleges depend critically on the availability of financing. As the past decade's experience of declining black college enrollment demonstrates, minority access to higher education depends as much, if not more, on strong national support for college financing than on affirmative-action admissions. If minority students cannot afford college, preferential admissions policies are an empty gesture, as well as an invitation to white resentment.

That is why the plan for postsecondary education presented in these pages by Barry Bluestone and his colleagues -- under which students would repay support for postsecondary education out of
their later earnings as part of income taxes paid to the IRS -- represents a more substantial, and more politically sustainable, avenue for opening up real opportunities for lower- and middle-income blacks as well as whites.

The lesson applies to many other areas. Capital endowments provide institutions a margin of security and independence, often vital to developing their own long-term mission. But the day-to-day flow of funds for most private nonprofit organizations typically depends on access to an affluent paying membership or to complementary public programs (and often both). Without the complementary systems of public financing for education, social services, and child care -- to mention three of the most critical areas -- a strong independent sector in the black community will not emerge.

* * *

One intermediate institution that especially depends on complementary public policy is the family. Here, despite conservative claims, liberals have a much better case for representing "pro-family" interests. The right's pro-family agenda (attacking promiscuity, pornography, homosexuality, and so on) expresses conservative cultural indignation about the contemporary world, but it has little practical value for families. If conservatives genuinely had remedies for today's high rates of divorce, illegitimacy, and single parenthood, that would be one thing. But they fail to propose means that realistically could achieve those ends.

There ought to be no disagreement, however, on the principle that social policy should aim to support and instill family responsibility. And that is exactly the premise of the emerging liberal agenda of family security. For example, child support assurance, one key element of that agenda, would guarantee public payment of parental (mostly fathers') support for children; unlike earlier programs, it would collect from the fathers as much of that support as possible. The aim of the policy would be to take child support out of the family courts and the welfare system, making the enforcement of parental responsibility more strict and equal and its evasion increasingly difficult. A thoroughgoing effort of this kind would have a progressive impact on women's economic circumstances after divorce and sharply cut back the existing welfare system. At the same time, it would also convey a message about the responsibilities of fathers.

Similarly, family leave policies that help parents, usually mothers, spend more time at home particularly in the first year of their infant's life also convey a message about parental responsibility. If not for the ideological blinders of contemporary debate, family leave would hardly be seen as a distinctively liberal idea. Conservatives have every right to claim it as their own.

Indeed, that is true of much of the agenda I have been outlining. Some may see in it a similarity to the ideas of Peter Berger and Richard Neuhaus, presented in a short book To Empower People (1977), often cited as a conservative answer to the welfare state. Unlike American conservatives, I see greater possibilities of complementary and supportive relations between public programs, especially social insurance, and what Berger and Neuhaus refer to as "mediating structures." I do not accept the conservative hypothesis that public action undermines intermediate institutions; many "points of light" shine only because of public electrification. But while we may have a different sense of the proper public-private balance, there is common ground here. And common ground between conservatives and liberals, blacks and whites, is what we will need to make progress against racial inequality.

The shift of the Supreme Court to the right is an ominous development for this country. But on affirmative action, it could be a blessing in disguise, forcing liberals and progressives to come up with answers to racial inequality that are both more effective in liberating minorities from poverty and more successful in generating the broad coalitions needed to carry out a wider agenda of reform. The art of politics consists in part of turning adversity into advantage. When the Supreme Court overturns racial preferences, those committed to racial justice should seize the occasion to mark a new beginning in the struggle.

* * *

To this plea, I want to add one postscript. Some readers may agree on the desirability of supporting indigenous minority institutions and the kind of broad, race-neutral policies I have described. But they may ask, "Why not do those things and affirmative action?" Aside from the loss of majority support on the Supreme Court, the answer, for me, lies in the social and political consequences of pursuing affirmative action policies. I am not opposed to affirmative action philosophically. I acknowledge the justice of the so-called "backward-looking," compensatory arguments for affirmative action. I do not believe that narrowly conceived meritocratic standards are or ought to be sacrosanct. I would favor affirmative action if, taking all its effects into account, it were positively beneficial.

But with the positive effects of racial preferences have come many unhappy ones -- sustaining racism, stigmatizing much minority achievement as "merely" the result of affirmative action, creating a sense of grievance among whites who then feel entitled to discriminate, and blocking the formation of bi-racial political alliances necessary to make progress against poverty. Affirmative action in its original sense of
outreach should survive. But in the interests of reopening the blocked path to equal opportunity, I ask my friends who have defended affirmative action in its extended meaning to consider the larger cause that it now poorly serves.

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