Uneasy Preferences

As solicitor general in the second Reagan administration, I led the charge in the Supreme Court against government-imposed racial preferences. I did it with conviction and enthusiasm. And in those years and the years since, the Court has indeed been moving in the direction we were urging. First the Court decreed that all state-imposed racial preferences, whether "benign" or not, must meet the hard-to-satisfy test of strict constitutional scrutiny. Later, it extended that ruling to racial preferences imposed not just by the states but by the federal government, and applied that same strict standard to strike down electoral districts designed primarily along racial grounds.

Racial preferences have been a source of contest ever since they became an important tool of social policy in every part of our national life—jobs, admissions to colleges and graduate schools, government contracting, and grants of licenses and political appointments at every level and in every department of government. All of this began in earnest shortly after the passage of the Civil Rights Act of 1964, a monument of legislation that was accompanied by the most explicit promise that it would never, ever be used to impose preferences, but only to ensure in private employment the same norm of nondiscrimination that the Supreme Court had in the years before proclaimed as the rule in all governmental action.

Since that time there have been waves of support for and objection to the use of racial preferences. In recent years we have seen the passage of Proposition 209 in California—a popular referendum that banned discrimination and preferences based on race or gender in state contracting, employment, and education—and the passage of Proposition 200 in Washington State, which did the same thing. Then there were the decisions of the Fifth Circuit Court of Appeals in Hopwood v. Texas, which made it illegal for Texas's public universities to use race as a factor when considering applicants, and the decision of the First Circuit Court in Wessmann v. Gittens, which ruled that the racial preferences in the Boston Latin School's admissions policy were unconstitutional.

But even as the courts have been rolling back affirmative action, powerful voices once articulately raised against the practice—I think of Nathan Glazer and Glenn Loury—have turned around entirely. And others, such as Colin Powell, President Neil Rudenstine of Harvard and former university presidents William Bowen (of Princeton) and Derek Bok (of Harvard), continue to speak eloquently in defense of preferential programs. Perhaps most significant is the fact that an attack on preferences was no part of the Contract with America, no part of Bob Dole's campaign in 1996, and is no part of Republican rhetoric today. This suggests that smart politicians sense there would be a significant reaction against the peremptory abolition of preferential policies.

What is the energy behind the resistance to affirmative action? Why has that energy waxed and waned, and what forces tug at us at this particular moment? Because I myself am perplexed and want to find a way out of my perplexity, this essay is my examination of conscience.

Affirmative Action as Pump-Priming

In a series of decisions in the 1950s and 1960s, the Supreme Court made clear that state-sponsored Jim Crow was dead. The Civil Rights Act of 1964 and subsequent legislation extended that determination to private employment, much private housing, places of public accommodation, activities receiving federal financial assistance, and voting. But while racial inequality had diminished significantly since the end of World War II, there were still very few African Americans in skilled trades, the professions, university faculty positions, or the student bodies of selective universities. And while the decisions of the Supreme Court through the 1950s and 1960s, along with the passage of the Civil Rights Act, did much to reduce institutional racial discrimination, we were still a society segmented by race, with African Americans at the lower level of this segmentation.

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In those years, the hope was that integration would rapidly follow the death of Jim Crow. But it soon became apparent that this would not happen—at least not right away—merely with outreach and the extension of a warm welcome. The deficit—in education levels, in job skills, in horizons of expectation—that had accumulated through years of systematic discrimination and government neglect was too great for blacks to make up without some sort of extra assistance. Thus the grades and board scores of African-American students accepted by elite universities under affirmative action programs were on average well below those of other students, as were the average qualifications of police officers, firefighters, and teachers hired and promoted under affirmative action programs. These lower admission standards for blacks were thought to be a temporary expedient necessary to get to a critical mass, a kind of pump-priming that after a few cycles would establish itself as a natural and sustainable flow of African Americans into the upper strata of American educational and professional life.

As the next decade ended, however, many had come to the conclusion that something had gone wrong, that affirmative action programs had somehow moved out of control, that the administration of Jimmy Carter had been captured by extreme elements that were pushing the use of racial preferences too far. Part of candidate Ronald Reagan's appeal was his resistance to this trend.

Perhaps the reaction was evidence that there finally had been progress toward equality of opportunity—and that white people faced with new competitors for jobs and admissions slots didn't like it. Perhaps whites were discomfited by the presence of a significant number of African Americans as colleagues, fellow students, coworkers—or bosses. Perhaps these were the reactions of "counter revolutionaries [whose] real goal is to protect the current distribution of privilege and opportunity that has produced white-male elites in almost every sector," as Christopher Edley has put it. But that cannot have been the whole of it. Where did the rest of the energy come from?

People were also reacting to the sense that a new set of bureaucracies had sprung up with the power to order citizens about in new and intrusive ways. There was the ominous feeling—I know, because I shared it—that in enforcing racial preferences in private hiring practices, the proper distinction between public and private was being elided. Justice Brennan, though not usually a fan of that distinction, captured some of the force of that ominous feeling in his opinion for the Court in United Steelworkers v. Weber. The plaintiffs in the Weber case were white workers seeking admission to a training program jointly sponsored by the United Steelworkers and the Kaiser Steel Company in Birmingham, Alabama. Both plant and union had a terrible racial history. The white plaintiffs claimed that by setting aside a certain percentage of places for African-American candidates, the program violated the Civil Rights Act, which forbade discrimination in employment on grounds of race. Justice Brennan responded that before the Civil Rights Act private employers were—as far as the Constitution was concerned—entirely free to discriminate on the basis of race or religion or national origin or gender. That was because the Constitution's guarantees of equal protection extended only to discrimination by government. In other words, before 1964, a private employer was in theory free to discriminate not only against African-American workers, but also for them, hiring them over more-qualified whites if he chose. In fact, prior to 1964, a private employer was free under the Constitution to employ whomever he wanted: he could employ exclusively white people or exclusively black people. While the Civil Rights Act changed that, in order to provide equal opportunity to African-American people, the statute—argued Justice Brennan—sought to interfere as little as possible with the usual prerogatives of private employers. Surely, then, it should be construed to forbid only the very evil at which Congress was aiming: the denial of opportunity to African-American workers. It should not take away a prerogative private employers had always enjoyed to use their own property, and the jobs they had to offer, in order to address a social problem they saw in the way that seemed best to them, including the use of racial preferences or favoring the previously disfavored in order to integrate their workforces.

In Brennan's reading of the law, allowing affirmative action in the private sector retained, rather than diminished, the prerogatives of private employers. Brennan, sensitive in this case to the line between public and private, meant to appease those who saw in affirmative action programs a dangerous step towards the nationalization of the country's employment market and therefore of private institutions themselves. If government says who is hired and who is fired, then what makes private institutions private? The line between public and private begins to fade.

And of course when Reagan was running for president, the Cold War was at its height, providing a clear foil against which to define American private-sector hiring practices. In the East Bloc, managers of enterprises would be constrained by party politics in their hiring decisions—jobs were a form of political patronage and an instrument of party discipline. At the time, certainly, it was not hard to imagine bureaucrats in affirmative action bureaucracies beginning to do the same thing here by imposing cumbersome restrictions on private institutions. Indeed the growth of affirmative action bureaucracies within large nongovernmental institutions offered a ready channel for this. Cronyism, nepotism, and the like have always existed, working to limit the freedom to hire—but having the force of government behind hiring constraints, people feared, would make them universal and inescapable.

But what moved the Reagan voters in 1980 was not primarily concern about the takeover of the prerogatives of managers, owners, and institutions. Nor were they moved so much by the sense that racial preferences cheated whites out of a fair chance at scarce jobs, contracts, or a slot at a top university. To be sure, for whites who felt they had lost jobs or admissions slots to less-qualified blacks, affirmative action practices must have had an acute sting. But these complaints have a declining resonance in today's tight labor market. And indeed the complaint about being displaced by a less-qualified minority has always struck me as a bit lame. Even during harder economic times there simply were never that many whites actually displaced by preferential programs. And in higher education, as Bowen and Bok have shown, only a few colleges have ever been in a position to exercise much selectivity, so the competitive concern may have rung truest among students who did not make it into elite programs—hardly a complaint with a broad popular appeal.

The Color-Blind Ideal

No, the real moral and emotional energy driving the resistance to preferences is captured by the slogan of color-blindness, as in the famous phrase in the dissent in Plessy v. Ferguson: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." This states an ideal, a principle, and a rallying cry. And that is what I emphasized in my briefs to the Supreme Court.

Here is what I said in one brief:

In this case, petitioners were laid off from their jobs as school teachers for the sole reason that they are white. . . . All there is by way of justification for the racially based misfortune visited upon petitioners are references . . . to a history of "societal discrimination," "underrepresentation" of minority teachers, and the need to supply "role-models" for minority students. So casual a waving aside of the fundamental Fourteenth Amendment principle of equal treatment for all persons regardless of race and of our republic's basic moral vision of the unity of all mankind cannot be countenanced.


And that is the theme the Court took up as, in case after case, it shifted towards a strong presumption against race-conscious government action. A particularly biting statement was made by Justice Kennedy in his dissent in Metro Broadcasting v. FCC, a case soon to be overruled, upholding preferences in the granting of broadcasting licenses to minority-owned broadcasters. "The FCC policy seems based on the demeaning notion that members of the defined racial groups subscribe to certain 'minority views' that must be different from those of other citizens," a notion he found chillingly reminiscent of justifications offered by the apartheid government of South Africa, and one open to "exploitation by opportunists who seek to take advantage of monetary rewards" available in such programs.

If I am right, Justice Kennedy's is the sentiment that has motivated not just recent Supreme Court decisions, but also the Hopwood and Boston Latin decisions, the passage of Proposition 209 in California and Proposition 200 in Washington, and the accumulation of resistance to racial preferences that has been building since the early 1970s. But does this logic make a compelling or even a coherent moral and constitutional argument? If so, why is it that just as the anti-affirmative action arguments of deep thinkers like Nathan Glazer and Glenn Loury came to be accepted, they—along with many others—drew back from their conclusion?

I believed—and continue to believe—that at the most basic level most Americans look to what Martin Luther King looked to: a society where race does not loom large, where it does not determine life chances, where it does not restrict life choices, where it does not determine with whom a person associates, who his friends are, or whom he loves. King's vision represents a conception of what it is to be a person, a conception that is affirmed in different ways by the Judeo-Christian tradition, by Islam, and by the Enlightenment. For these religious traditions every human being is beloved of God, and there is no more important thing about a person than that relation to God. The Enlightenment conception is most profoundly stated by Immanuel Kant, for whom the capacity to choose and to reason are the source both of each person's moral sense and of each person's moral worth. Whatever differences there are between people (and peoples) are literally of no consequence as measured against this fundamental equality.

Both the religious and the humanistic conceptions of personhood insist on an individual's essential freedom to choose—to choose his relationship to God or to his fellow man. Both conceptions reject the idea that we are made by our circumstances—by our nationality, by our biology, by our race. There is but one race and that is the human race. All the differences between us are contingent, morally irrelevant. And that is why any doctrine that would divide us into groups or castes from which we cannot escape by the exercise of our reason and our moral sense is an offense against humanity—to some, an offense against God. And this is not only an Enlightenment and religious ideal, it is the ideal which defines our nation. We are not—our history of slavery and racism notwithstanding—a nation of blood, of contingency and biology. Our conception is of ourselves as a nation of persons who choose to be Americans.

It is this conception that explains what has seemed an intellectual puzzle: why "separate but equal" (even truly equal) did not accord with what our Constitution meant by equality. This explains why Plessy v. Ferguson was wrong and why Brown v. Board of Education in this respect was an insufficiently fundamental response to our own version of apartheid. It also explains the logic of an equally important case, Loving v. Virginia, which struck down anti-miscegenation laws even though such laws could have been taken to bear equally on all races. The equality of which the Constitution speaks is not an equality of result or even of resources, but the equality implicit in the religious and Enlightenment conception of the unity of mankind. And that is why it is troublesome for government to govern in terms of race, to make or impose distinctions based on race. That is why the cases from Regents of the University of California v. Bakke (1978) onward are right in subjecting the so-called benign use of race (as in affirmative action) and its invidious use (as in segregation) to the same standard of constitutional scrutiny.

We need to understand that there is a difference between racial preferences and other preferences, some of which are exercised quite regularly by colleges and universities. Proponents of racial preferences in higher education regularly point to the ongoing and accepted use of geographical preferences and preferences for alumni, athletes, and musicians. But these are false analogies. A preference for musicians or athletes is a preference for what the person will bring in skills and interests—and the only quarrel available is whether athletic ability, for instance, should count as a desirable capacity in an undergraduate program. (Alumni and geographical preferences are another matter.) But whatever may be said to justify or attack such preferences—and there is something on both sides—they are quite different from racial preferences because they do not work to create or perpetuate a serious and historical divide in our nation. They do not segment us in the way that racial discrimination did and still does and the way that racial preferences now threaten to.

Fear of Resegregation

How to account, then, for the response of Glazer and Loury and Bowen and Bok—men of the Enlightenment—to Proposition 209 and to Hopwood and to the Supreme Court's present jurisprudence? The answer is simple and has in recent months been boldly stated by Glazer and minutely documented by Bowen and Bok in The Shape of the River: without preferences the elite institutions of this country might rapidly be stripped of much of their African-American presence.

But if you embrace the universalistic, nonracialist moral imperative, as I do, then why should this specter of resegregation be so troubling as to lead to an abandonment of the principle of color-blindness? The reason is obvious: a society that is segmented by race, with all the best jobs, places, honors, and titles going to whites (and Asian Americans) is simply not an integrated society, whatever the reason for the segmentation. It is two societies, separated by race. So it will appear and so it will feel to everyone in it, even if (especially if?) everyone understands that there is perfect equality of opportunity, that no exclusionary practices obtain or would be tolerated. African Americans and whites share a common humanity, but if African Americans almost invariably appear in subordinate roles, then this commonality will seem a very abstract thing indeed. It is all very well to say that color is irrelevant and that in a free and open society some will always be worse off than others. But if disadvantage is so strongly correlated with color, then color must retain its saliency.

This, I believe, is an argument for preferences that seems more effective than the elusive and sometimes contrived "diversity" argument. It is not "diversity" that is at stake here, but the exact opposite. African Americans and whites need to interact in every way and at every level, not so that they may learn to "value their differences," as it is fashionable to argue, but for precisely the opposite reason, that they may come to see that they are very much the same.

The ultimate sign of our seeing our common humanity, of seeing past superficial and irrelevant differences, is love. Intermarriage and interracial adoption are our ultimate salvation. Our classrooms, faculties, boardrooms, workplaces, or presidents' cabinets may all come to "look like America" and we still may not have been saved. But when our families look like America—then we will have been saved! But how are whites and African Americans to meet and fall in love, if they never see each other in situations of equality?

That is the horror. But is what we have now so great? It is time to admit what everyone knows: we are now deliberately segmenting ourselves on the basis of race, even as we reassemble more or less successfully in our preferentially constructed classrooms, boardrooms, workplaces. Is that better than letting the chips fall where they may? It is claimed that it is better, because it is only for a while, a kind of strenuous pump-priming until the force of gravity gets things going on their own. I am afraid that will not do either. John Jeffries's biography of Justice Lewis Powell, the author of the majority opinion in Bakke, tells this story:

In the course of the discussion [of Bakke in the conference of the justices] Justice Stevens said that preferences might be acceptable as a temporary measure but not a permanent solution. Powell agreed. The problem was one of transition to a color-blind society. Perhaps, Stevens added, blacks would not need these programs much longer, but at this point Justice Marshall broke in to say that it would be another hundred years. This remark left Powell speechless. . . . [H]e recoiled from the prospect of generation upon generation of racial quotas.

And there is the dilemma. Justice Powell recoiled from generation upon generation of racial quotas because any practice that goes on for so long must become the norm and not a transition to something else. One hundred years or 25 years of government administering and counting and differentiating between us because of race—with the ultimate aim, to be sure, of uniting us—makes race a firm and official and permanent marker. If this is what is being promised in the name of transition, it must be rejected, just as Justice Powell rejected it. And it is because so many people sense that what is offered as a transition is well on its way to becoming permanent—as permanent as anything can be—that we have Proposition 209 and Hopwood, not to mention the Supreme Court decisions firmly rejecting a permanent regime of racial divide, even if justified on the ground that the dividing line is benign.

As we look at the future of affirmative action we are not talking about shutting down a regime that is unjust, that inflicts harm on innocent persons. Segregation was such a regime, and "all deliberate speed" was not too speedy to shut it down. We are considering here an approach adopted for the best of motives with many fine results, but one that was always a compromise and partial abandonment of principle. If it was ever right—and I think that at some time in the past it was—then its continuation for another year, another day, another hour cannot be wicked. It is wrong only because it threatens to become permanent. The arguments of those who seek to reassure us that they agree with that proposition in principle only make that threat more vivid. President Clinton's "mend it, don't end it" pronouncement was a certain promise of racial preferences and racial politics as far as the eye could see. But if "all deliberate speed" was fast enough for desegregation, then surely nothing speedier is required for phasing out reverse discrimination. The measures to be taken need not be immediate; they must only promise a certain end to government-supported racial preferences within the imaginative horizon of ordinary people. Five years? Just as environmental laws have forced the development of more efficient technology, such a firm deadline might have the good effect of forcing institutions to break away from methods and criteria whose logic has not been examined for years—which is precisely what has happened in the Texas and California university systems and in employment situations, where there has been a move away from undue reliance on written tests where their relevance is slight. Finally, those concerned that five years might be too peremptory a time period—or that eradicating racial preferences in government hiring will be too inalterable a solution once established—can take heart from the logic Justice Brennan used in the Weber case. As long as government takes care to observe the distinction Brennan made between public and private, private entities remain free to pursue whatever social remedies they see fit in their hiring practices. This leaves open a variety of solutions to the problem of disparate racial outcomes, while nevertheless definitively removing government from the business of governing by race.

Time is running out for another reason. Although ours has always been a country of immigration, in recent decades immigration from non-European countries is changing—quite literally—the complexion of the country. And it is clear that for political reasons, if for no others, the claims of these new immigrants to enjoy some version of the preferences accorded African Americans is proving irresistible. Remember that the standard predicate for claiming a minority business set-aside is being "Black, Spanish-speaking, Oriental, Indian, Eskimo or Aleut." If total preferences are limited to 10 or perhaps 20 percent, it is inevitable that these groups will jostle each other for what are after all major political, social, and economic payoffs. The adjudication of any such competition cannot help but be ugly. It would inevitably be racialist if not racist. And if the percentage enjoying preference rises much above 20 percent, then the specter of government sway over the employment market and many other domains would be upon us. And given the happy fact that many of these immigrant groups have significant rates of exogamy, the very determination of ethnic identity promises a definitional nightmare from which we might awaken to find ourselves in a situation eerily reminiscent of the Nuremberg Laws. With that prospect in sight, would it not be best to say—in the words of the song—"let's call the whole thing off"?

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