Skip to main content

View Diary: PERPETUATION OF RACIAL ENTITLEMENTS (13 comments)

Comment Preferences

  •  Further info on racial entitlements (1+ / 0-)
    Recommended by:
    lightarty

    Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in America  by Eduardo Bonilla-Silva takes the stance that there is a theory of "color-blind" racism, which I take to mean that by upholding that racial minority entitlements society discriminating against majority individuals . . .

    Whitewashing Race: The Myth of a Color-Blind Society
    also shows the errors of the "color-blind" society myth.

    Burke Marshall (b. 1922) received his bachelor’s and law degrees from Yale University. He was an assistant attorney general from 1961 to 1965 during the Kennedy administration, working on racial issues. He is now an emeritus law professor at Yale. Nicholas deB. Katzenbach (b. 1922) graduated from Princeton

      University and received a law degree from Yale. He was attorney general from 1965 to 1966 during the Johnson administration and coauthor of The Political Foundations of International Law (1961). This essay was first published in the New York Times Magazine (February 22, 1998).

    Few African American students are likely to enter the great public law schools of California and Texas in the fall. That is the direct, fore­seeable consequence of a California referendum and a Texas federal court decision. So concerned were civil rights groups about the popular and legal doctrine that led to this result that they joined together to deny the U.S. Supreme Court the opportunity to decide an apparently definitive affirmative action case involving teachers in Piscataway Township, New Jersey. Do such events - especially Piscataway — foretell the end of affirmative action, or have we simply lost sight of our long-term vision of a color-blind society?

    In 1989, the Piscataway school board, faced with the need to lay off a single teacher, chose to lay off a white while retaining an African American of equal seniority and qualifications. The board gave racial diversity, citing its affirmative action policy, as the sole reason for the choice. Its decision was rejected by a federal judge who found the board in violation of the 1964 Civil Rights Act. That ruling was upheld by a federal appellate court. The school board appealed to the Supreme Court. Late last year, with financial assistance from civil rights groups, the board settled the case and withdrew its appeal.

    The settlement has since become a kind of raw shorthand in the national debate about affirmative action because its facts serve to make clear the core of that debate. The seeming baldness of the facts plainly told the civil rights groups’ leaders that the case should not be permitted to remain in the Supreme Court, and that it would be prudent to use their funds to avoid its doing so. This may be the first time that money has been used directly to take an important public policy issue off the Court’s docket.

    All this arose because the case was framed to portray person-to-person competition for a job in which race alone was the decisive factor. This aspect fitted neatly with the notion, widespread among opponents of affirmative action, that it creates a zero-sum game in which there is a loser for every winner and that the game is won and lost on the basis of race. Thus it obscures the larger goal of finding and preserving room for blacks in all aspects—economic, political, educational, social—and at all levels of society.

    In addition, the ease involved a layoff—the loss of a specific, known job—instead of a positive general decision as to what kind and mix of people are needed in a work force or in a faculty or student body. The facts fitted in not only with some legal learning—that an affirmative action program should not “unnecessarily trammel” the expectations of those not included in the program — but also more importantly with the personalization of the controversy into one in which whites are individually hurt by being deprived of their deserved opportunities, by deliberate and explicit efforts to include blacks.

    These aspects of the Piscataway litigation appeared perfect for opponents of affirmative action and a legal land mine for its defenders. The former believed that the facts of the case would lead a majority of the Supreme Court to say, about affirmative action in general, that the case showed its injustices and the malevolent consequences of permitting the use of race as a factor, certainly as a decisive one, in allocating any scarce resources, like jobs or admissions to great universities. Strangely enough, the latter group — the important civil rights organizations and their lawyers as well as the Clinton administration — saw the case in the same way. Thus all concerned either hoped or feared that the Court, when faced with the rejected white teacher, would say: “Enough of this. It has gone on too long already. This is the end of affirmative action for any purpose as far as the law is concerned.”

    Is affirmative action really the unfair black “preference, or reverse discrimination,” policy that its critics claim and that Piscataway seems to present so starkly? Have we in fact lost sight of the larger goal of integrating blacks into our society? Or have we been so successful in achieving a “color blind” society about which Martin Luther King dreamed that the larger goal need no longer concern us?

    Those who oppose affirmative action programs do not make such broad claims. They affirm the goal of an integrated society and do not contend we have yet achieved it. Critics simply argue that it is morally and constitutionally wrong to seek its achievement through race-based programs that give a “preference” to African Americans. Such programs, they maintain, are essentially wrong for the same reasons that it is wrong for whites to discriminate against blacks. It denies “equal opportunity” to whites and is antithetical to awarding jobs or promotions or college admissions on the basis of merit.

    There is no longer any dispute that overt, provable racial bias against blacks in employment or education should be unlawful. The disputed question is whether overt and provable bias is the only form of racial bias with which our society should—or can lawfully—be concerned. Certainly that bias — state supported in the Deep South and rampant throughout the country—was the immediate and most important target of the civil rights laws of the 1960s. Equally, the white majority in this country, despite deep-seated feelings of racial superiority, committed itself to achieving an integrated society. That happened, we believe, for the simple reason that it did not seem possible, then or now, for this country to maintain its democratic principles unless we could achieve Dr. King’s dream. Is the elimination of overt bias all we need to do to accomplish that end?

    The term “affirmative action” was first officially used in 1961 when President Kennedy strengthened an existing executive order prohibiting racial discrimination by government contractors in their employment practices. It was a natural, not a provocative, term to use. In the early ‘60s, blacks were essentially excluded from every level and every desirable institution of society. In many places they could not enter theaters, restaurants, hotels, or even parts of public libraries, courtrooms, and legislatures. How could that condition possibly have been changed— and the nation as a whole have decided that it should be changed —without taking action affirmatively, positively, deliberately, explicitly to change it?

    So it was that there was no real controversy at the national level over the basic idea of acting affirmatively about race, although debate started soon enough, as it should have, over the details of particular steps. But at that time the country saw problems of race as problems to be faced and dealt with as the racial problems they were. The label “affirmative action” became popular perhaps because it suggested that we were at long last dealing with our oldest and most difficult problem. It was applied beyond the Kennedy executive order to a variety of race-based programs, private and public, voluntary as well as legally coerced, that sought to guarantee the employment — or, in the case of educational institutions, the admission—of qualified African Americans. It preceded the Civil Rights Acts of the 1960s and was consciously aimed at racial bias at a time when individuals could not yet sue private employers. But companies’ employment of qualified African Americans to insure eligibility for government contracts was measured not individual by individual but by success in achieving reasonable numbers over time.

    The technique of setting goals for minority employment is important because of its capacity to deal with all forms of potential bias —overt, concealed, or even inadvertent. Most national corporations have adopted employment goals. They appreciate the economic advantages of expanding and integrating the work force and they understand the need to press hard if the overall goal of inclusion is to be obtained.

    The natural inclination of predominantly white male middle managers is to hire and promote one of their own. Most of the time the decision honestly reflects their judgment as to the best candidate without  conscious appreciation of how much that judgment may have been conditioned by experience in the largely segregated society we still live in. To hire or promote an African American is often viewed as risky. Will he or she be accepted by fellow workers? A white may be praised for his independence; a like-minded black is seen as not a “team player.” If corporations set reasonable hiring and promotion goals and reward management for their achievement, the integration process is speeded up. Public and private policies coincide.

    Critics of affirmative action in employment see it not as an effort to create a reasonably integrated work force but as a system for favoring a less-qualified African American over a better-qualified white — a system of “preference” rather than “merit.” There are three difficulties with their argument.

    First, critics seek to reduce what is administered as a flexible system of hiring and promoting numbers of people into a measurement of one individual against another. Affirmative action programs deal with numbers of people at various times and seek to examine flexibly the results in numbers, not whether individual A is better than B. Such a program does not examine or re-examine each decision or demand precise achievement of numerical goals; it does not require a “quota" like a sales quota. It thus encourages personnel judgments, tolerating individual mistakes whether a white or a black is the victim.

    Second, the critics assume that it is possible precisely to define and measure “merit.” The best person for one job may not be the best for another, and vice versa; how does one square individual differences, or the “overqualified” candidate, with merit and the requirements of a particular job? Assuming that we are selecting from a pool of candidates who all meet whatever objective criteria are applicable to job performance, selection of the “best qualified” becomes a matter of subjective judgment by the employer—a judgment that involves weighing such intangibles as personality, leadership ability, motivation, dependability, enthusiasm, attitude toward authority. If critics are claiming that affirmative action has resulted in a less-competent work force because of the hiring and promotion of less-qualified blacks, neither evidence nor experience supports that conclusion.

    Third, to argue that affirmative action constitutes a “preference” for African Americans is simply to argue that it distorts what would other­wise be a more efficient and fair system. Since the premise of the argument is that affirmative action constitutes a “preference” for blacks, it is fair to assume that proponents believe a “color blind” system would result in fewer blacks being employed. Why? If the pool of qualified applicants is 10 percent African American, then a color-blind system or an

    affirmative action program would result in about 10 percent black representation in the work force.

    Thus, the word “preference” as critics use it is an effort to convert a broad employment effort into a series of individual choices or comparisons, as in Piscataway , with the additional innuendo that the fact of “preference” means a less-qualified African American will always prevail. That is a serious distortion of affirmative action.

    Put differently, opponents of affirmative action in employment believe either that today the playing field is level for all races or that, absent overt racial bias, we should act as if it were. By contrast, most African Americans and many whites believe that bias still exists, though not always overtly, and that affirmative action is simply a guarantee that the playing field is not tilted.

    Laws forbidding racial discrimination were relatively easy to administer when the bias was overt and widespread. The more that bias goes underground or, worse yet, is unconscious on the part of the decision maker, who believes his decision is uninfluenced by race, the more difficult and controversial that administration becomes. To label and punish unconscious bias as though it wore a hood may well be offensive. Programs of affirmative action avoid that problem while promoting the integrated society we seek. They minimally interfere with discretion in making particular choices and give management a desirable latitude in exercising particular judgments.

    The other use of affirmative action most commonly criticized is in college admission. Educational institutions usually create a pool of applicants who meet objective tests designed to determine if the applicant is capable of performing successfully. Tests can reasonably predict first-year performance and do not claim to do more. But selection from the pool is not confined to rank on test scores, and applicants with lower scores are admitted for many reasons. Some applicants are admitted on the basis of judgments about potential and predictions about future per­formance not unlike those used in employment decisions. A student from a poor school who qualifies may be seen, despite a lower score, as having great motivation and aptitude. In other cases, “merit” is measured by other abilities, like musical or athletic talent. In still others, admissions may be determined by geography, financial ability, relationship to graduates, or relationship to people important in other ways to the institution. And finally, race and national origin may be taken into account and labeled “affirmative action.”

    If race cannot be taken into account and admission is based on test scores alone, far fewer African Americans will qualify. That was the predictable result in California and Texas, where state institutions were forbidden to take race into account. Again, the word “preference” is unfortunate because critics use it to imply that some kind of racial bias is used to reject better-qualified whites. Most of the students admitted are in fact white, hardly a demonstration of a bias in favor of blacks, and certainly not one that can be equated with past denials of admission to blacks to our best universities.

    What proponents of affirmative action in college admissions urge is simply an institutional need for qualified African Americans on the grounds that a diverse student body contributes to educational excel­lence and to the preparation of students to live in an integrated society. Critics do not question the educational advantage of diversity—though their prescriptions would make its achievement virtually impossible. Further, those African Americans who can qualify for the institutional admissions pool would probably not be as successful as they are without superior motivation and determination — qualities most Americans would associate with merit.

    Colleges and professional schools serve as gatekeepers to professional and business careers. If African Americans can successfully do the academic work, they will importantly contribute to the public goal of an integrated society. Studies support the contention that some blacks perform better academically than some whites with better test scores and that African Americans successfully compete for employment at a comparable level with whites upon graduation.

    The arguments against this “preference” are similar to those in other affirmative action programs: it is anti-merit and discriminates against whites with higher scores on admissions tests. That argument is not really worth consideration unless one is prepared to argue that all admissions should be measured exclusively by test scores. No one is prepared to go that far. The plea for fairness based on “merit” as measured by test scores appears to be confined to race — a plea that in our society should be regarded with some skepticism.

    Affirmative action programs, whether to avoid present bias or to remedy the effects of three centuries of discrimination against African Americans, are race-based. The problems they seek to cure are and always have been race-based. They stem from history—the political, economic, and social domination of blacks by a white majority that re­garded blacks as inferior. Undoubtedly there are blacks who are biased against whites and who, given the power to do so, would discriminate against them. Of course, given the power, it would be as morally wrong for them to do so as it has been for whites. But discrimination by blacks against whites is not America ’s problem. It is not the problem that predominantly white legislatures, businesses, and universities seek to solve in rough affirmative action programs.

    To speak of these white efforts as though they were racially biased against whites and to equate them with the discriminatory practices of the lie past against African Americans is to steal the rhetoric of civil rights and turn it upside down. For racial bias to be a problem, it must be accompanied by power. Affirmative action programs are race-based not to show preference for one race over another but to resolve that problem. Only if one ignores that purpose and states the matter in Piscataway terms — preferring one individual over another for no reason other than race — does there even appear to be room for argument. If problems of race are to be solved, they must be seen as the race-based problems they are.

    It is this aspect of the controversy that recent decisions of the Supreme Court have brought into question. The Equal Protection Clause of the Fourteenth Amendment was designed to insure that former slaves and their descendants were entitled to the same legal protection as white citizens. Like the Thirteenth Amendment abolishing slavery and the Fifteenth guaranteeing the right to vote regardless of race, it was clearly and unequivocally aimed at racial problems — in today’s terminology “race based.” The Equal Protection Clause has never been viewed as preventing classification of citizens for governmental reasons as long as the legislative classification was “reasonable” in terms of its purpose.

    Where that classification involved race, however, the Court determined that it must be given “strict scrutiny.” In other words, given our history both before and after the passage of the amendment, the Court understandably thought it wise to regard any racial classifications by overwhelmingly white legislatures with skepticism. When it was satisfied after strict scrutiny that the classification did not have the purpose or effect of discriminating against African Americans or other ethnic mi­norities, the Court found legislation to be consistent with the amendment. In the context of both our history and that of the amendment, this simply forbade abuse of white political superiority that prejudiced other races or ethnic minorities.

    More recently, however, a majority has edged toward pronouncing the Constitution “color blind,” coming close to holding legislation that uses any racial classification unconstitutional. Reading the Equal Protection Clause to protect whites as well as blacks from racial classification is to focus upon a situation that does not and never has existed in our society. Unfortunately, it casts doubt upon all forms of racial classification, however benign and however focused upon promoting integration. If such a reading is finally adopted by a majority of the Court, it would put a constitutional pall over all governmental affirmative action programs and even put similar private programs in danger of being labeled “discriminatory” against whites and therefore in violation of existing civil rights legislation—perhaps the ultimate stupidity.

    The Court has, in short, never accepted as a national priority—in its terms a “compelling state interest” — the necessary race-based efforts, private and public, to include blacks in the institutional framework that constitutes America ’s economic, political, educational, and social life. Its recent decisions on the distribution of political power through district­ing outcomes have precluded race as a major factor while permitting incumbency, party affiliations, random geographic features, and bound­aries drawn for obsolete historical reasons. Other lines of cases have similar outcomes for university admissions (as against unfair and edu­cationally irrelevant factors like family ties, athletic prowess, and geog­raphy) and employment choices. It is very nearly as if this Court has simply mandated that what is the country’s historic struggle against racial oppression and racial prejudice cannot be acted upon in a race­conscious way—that the law must view racial problems observable by all as if oppression and prejudice did not exist and had never existed. The Court’s majority, in other words, has come very close to saying— and the hope and fear about the Piscataway case was that it would fi­nally say at last—that courts cannot be permitted to see what is plain to everybody else.

    Topics for Critical Thinking and Writing

    1.  What is a “zero-sum game” (para. 4), and why might it seem that affir­mative action involves such a game?

    2.    The authors suggest that part (most?) of the original purpose behind af­firmative action was “the larger goal of integrating blacks into our soci­ety” (para. 7). Do the authors explain how this was supposed to work?

    3.    Affirmative action has been defined in law and practice in several differ­ent ways. After reading this essay, how would you complete the follow­ing definition: “A given program is a program of affirmative action if and only if    (Hint: Consult your reference librarian about some spe­cific affirmative action program. For example, what made Head Start an example of affirmative action?)

    4.    The authors offer three replies to critics of affirmative action (paras.14—18). Which of these replies do you think is most persuasive? Least

    persuasive? Explain yourself in an essay of 300 words.

    5.    

         If it had been within the power of the authors to decide the Piscataway case (paras. 1—6), how do you think they would have decided it?

    6.    Suppose Jones and Smith are both equally qualified for entrance to a se­lective college as measured in the usual ways (SAT scores, rank in high school graduating class, teacher recommendations). Only one can be admitted, however. One admission officer argues for admitting Jones because he comes from a remote part of the country and thus would help the college diversify its student body geographically. Another ad­mission officer argues for admitting Smith because she is a member of an ethnic minority and thus would help the college diversify its student body racially. Do you think one of the two kinds of diversity is more im­portant than the other? Why? Which candidate would you prefer to admit, and why?

    7.    The authors are skeptical about college admissions “based on ‘merit”’ (para. 25), especially

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site