Insights from: The Affirmative Action Fraud: Can We Restore the American Civil Rights Vision? By Clint Bolick (Cato Institute, 1996)
One hundred years after Plessy v. Ferguson ushered in the repugnant reign of "separate but equal," the California Civil Rights Initiative (CCRI) will finally signal the beginning of the end of government's power to classify and discriminate against individuals on the basis of race. Politicians and the courts have made it clear they lack the courage to end racial classifications. It will take the people to do it, and that's what CCRI represents. Passing CCRI will force not just Californians but all Americans to confront the serious social problems that for too long have gone unaddressed: inadequate public education, too few entrepreneurial opportunities, too much crime, and deepening dependency on welfare.
Anyone interested in learning why CCRI is so important and how the world of racial preferences works in California and across the nation should turn to The Affirmative Action Fraud: Can We Restore the American Civil Rights Vision? by Clint Bolick. Bolick, a civil rights activist and litigation director for the Washington, D.C.-based Institute for Justice, makes a persuasive case that racial preferences are not true affirmative action. True affirmative action means increasing the number of people who can compete on an equal basis--not apportioning outcomes by skin color. CCRI abolishes racial preferences but does nothing to inhibit true affirmative action. Bolick's book and CCRI remind us that abolishing racial preferences is not a retreat from civil rights, but rather an advance toward civil rights' color-blind ideal.
On the subject of affirmative action, Clint Bolick and his ideological opposites agree on one thing and one thing only: the end of affirmative action means a return. The question is, a return to what?
For the defenders of affirmative action, its repeal means a return to the worst days of America's racist past--a reversal of the progress made these past 30 years redressing racial wrongs through policies that parcel out rights by quotas and by color.
For Bolick and his fellow affirmative action abolitionists, the rollback of affirmative action would indeed mark a return--but to what Bolick calls the original vision of America's civil rights advocates: the quest for a truly color-blind society.
How have we progressed from Martin Luther King Jr.'s stirring wish that we be judged by the content of our character and not the color of our skin, to a regime where education opportunities, employment, promotions, and even voting districts are calibrated by color? In the present political season--as affirmative action forces its way into the presidential debate and onto California's ballot--Bolick's book provides a primer on a civil rights movement gone wrong.
As Bolick observes, civil rights was not always a colorized version of "pork barrel politics." That this is precisely where affirmative action has taken us is, however, beyond question. Bolick quotes Mary Frances Berry, President Clinton's choice for chair of the U.S. Commission on Civil Rights: "'Civil rights laws were not passed to give civil rights protection to all Americans,' but just to members of certain groups." (pp. 23-4) Or, in Justice Thurgood Marshall's pithy phrase, "You guys have been practicing discrimination for years. Now it is our turn." (p. 39)
Yet in Bolick's telling, Marshall's candor comes as a welcome counterpoint to the Orwellian opinion of the U.S. Supreme Court in the seminal Bakke case: "In order to get beyond racism, we must first take account of race . . . . And in order to treat some persons equally, we must treat them differently."
Or to paraphrase the popular Vietnam-vintage irony, "we had to destroy the nation in order to save it."
And the destructive power of modern affirmative action is everywhere evident: to white Americans, in the portioning of opportunity by race--even if the job or admissions slip goes to the child of a black millionaire at the expense of a poor white child from the hills of Appalachia; to minority Americans--as quotas and set-asides put a question mark behind the concept of self-earned success. As indicated by the popular support for such efforts as the California's Civil Rights Initiative, which rolls back all affirmative action provisions that now barnacle that state's law books, Americans seem to be reaching the limit of their patience for policies that penalize each generation ad infinitum for the racist sins of their fathers.
Still, The Affirmative Action Fraud is more than a critique of the polymorphous perversities of the 30-year odyssey that is affirmative action. Indeed, the value of Bolick's book is that it reaches behind the current controversy to place the civil rights debate in perspective. In so doing, Bolick demonstrates conclusively that affirmative action--in particular, the rise of quotas--can be described as synonymous with civil rights only if one is willing to undergo a historical lobotomy.
In fact, the notion that quotas could in any way advance civil rights was once widely reviled by the major leaders in the civil rights movement. Bolick reminds readers that during the debate on the Civil Rights Act, lead sponsor Senator Hubert Humphrey ". . . declared that if anyone could find in the law 'any language which provides that an employer will have to hire on the basis of percentage or quota . . ., I will start eating the pages one after another, because it is not in there.'"(p. 52)
Humphrey's denunciation of quotas on the Senate floor--an assurance that was essential in securing the passage of the Civil Rights Act--is perhaps the last word in a remarkably consistent civil rights dialogue that dated back to the American founding and beyond. In this tradition, civil rights were individual liberties, to be secured against the state--not special privileges dispensed according to a government color-by-number scheme. The answer to the state's practice of discrimination was to deny it the power to discriminate--not to ask it to discriminate in a more balanced and benign manner. Recovering this history paints the past 30 years of affirmative action as an aberration--a deviation--from the civil rights path of the previous 200 years. Writes Bolick:
"If one took the great civil rights leaders at different periods of American history--whether Tom Paine, or William Lloyd Garrison, or Frederick Douglass, or Booker T. Washington, or W.E.B. DuBois, or Martin Luther King, Jr.--and randomly arranged their descriptions of their civil rights visions, it would be difficult for even the most accomplished of historians to distinguish among them." (pp. 37-38)
Indeed, Bolick reminds us that the ultimate American civil rights visionary, Martin Luther King, Jr., understood himself to be fulfilling an ideal that traced its origins not simply to the American founding, but to the classical liberal theorists of the 17th Century:
"[The American founders] took from John Locke of England the theory of natural rights and the justification of revolution and imbued it with the ideal of a society governed by the people."
Thus does King acknowledge his place as heir to the legacy of Locke, dean of the Dead White European Males.
Only from the perspective of history can we fully savor the irony of the civil rights movement's modern aims. Did the mothers and fathers of the civil rights movement fight against segregated lunch counters to win for their children the right to sit at segregated lunch tables in college cafeterias? Did they go to court to abolish the practice of segregated sleeping cars so that their children could demand the right to sleep in segregated dormitories? Is this the realization of Martin Luther King Jr.'s dream--or the revenge of Jim Crow?
Bolstered by this all-but-forgotten history and the recovery of the shining ideal of the original civil rights movement, Bolick takes dead aim at the ravages of affirmative action in American life. He recounts the story of Cheryl Hopwood, a Texas woman whose test scores qualified her for admission to the University of Texas' law school but whose skin color--white--did not; he shares as well the tales of Mary Yee and Warren Murayama of Montgomery County, Maryland, whose request to transfer their children to a special French language school was denied because their departure from their current school would disturb its ethnic composition--no matter that Ms. Yee protested that her daughter was half-white and half-Asian. Like Plessy's octoroon ancestry--or the reviled South African apartheid race classifications regime--America under affirmative action has become a place where racial identity is far too important to leave to the whims of government officials. Chillingly, the state reserves to itself the right to determine who and what we are.
In the area of voting rights and representation, Bolick takes us through the affirmative action looking glass to what we might call the American Brezhnev Doctrine: The guiding tenet that a district won by a minority representative should ever after be redrawn so as to be won perpetually by members of that minority. The gerrymandered results, of course, must be seen to be appreciated, thought Bolick quotes a North Carolina state legislator on that state's serpentine District 12: "If you drove down the interstate with both car doors open, you'd kill most of the people in the district." (p. 83) The result, according to Bolick, is nothing short of an electoral system of "political apartheid."
On the subject of affirmative action in the electoral process, Bolick also recalls Lani Guinier's musings--Bolick takes his Guinier neat, quoting from the undiluted passages in Guinier's law review articles she saw fit to scissor out of her book of reprints--as to whether "descriptively black representatives who were also Republicans qualify as black representatives?" (p. 91) Judging from Guinier's not-so-open question, the distance from redistricting to the re-education camps is indeed short.
Bolick moves from policy to treat the politics of affirmative action and the pathologies it causes in both parties. He peels away the pieties of Clinton Administration officials who abjure "numerical goals, quotas and timetables" when in front of a Senate confirmation committee, only to employ precisely such tools when wielding federal power. From the Clinton Justice Department's intervention in support of the Piscataway, New Jersey school system, which had dismissed a white teacher with seniority equal to a black colleague in order to promote "diversity" in the teaching staff, to the Clinton Department of Housing and Urban Development, which launched a Fair Housing Act discrimination investigation of three Berkeley, California residents--complete with threats of $100,000 fines--who had raised HUD's ire by opposing a homeless shelter in their neighborhood, Bolick chronicles the blackjack that affirmative action strictures have become, even absent court findings of actual discrimination.
But if the Clinton Administration is, in Bolick's assessment, "the most quota-driven in history," the Republican Party, he points out, offers little in the way of a principled alternative. Reminding his reader that Ronald Reagan could have rescinded with a simple stroke of the pen the infamous LBJ--era Executive Order 11246--the wellspring of the administrative affirmative action policies that came to twist beyond recognition the color-blind principles of the '60s civil rights legislation--Bolick makes conservatives squirm with the knowledge that when given the chance to end affirmative action, they preferred simply to inveigh against it.
And even that fails to capture fully the Republicans' strange attraction to affirmative action. Bolick reminds that quotas and set-asides exploded not during the days of a Democratic White House, but under Richard Nixon. Bolick astutely points out that opponents of affirmative action have been hampered by the advocates' "moral monopoly" (p. 5) on the language and vocabulary of civil rights, making it morally uncomfortable for Republicans to challenge quota schemes advanced in the name of civil rights. And yet Bolick also reports the amoral opportunism evident in the GOP's deal on racial redistricting, which even as it preserved minority districts removed Democratically-inclined minorities from majority white districts that consistently delivered Republican victories.
Here, Bolick reaches the hinge in his argument. While Republicans are on the right side of this issue and, unlike the Democrats, seem to recognize and recoil from what Bolick calls "the incalculable costs of dividing a society on the basis of race," (p. 84 ) Republicans regularly fail to embrace the positive program that must follow the abolition of affirmative action: "But beyond their fidelity to the principle of nondiscrimination, Republicans will ultimately be judged by the effort and ingenuity they invest in expanding opportunity for the most disadvantaged members of society." (p. 118)
. . . one thing is certain: The one way we can ensure that we never achieve a colorblind society is to continue classifying individuals on the basis of race ethnicity and gender. But those who seek to eradicate such distinctions need also to acknowledge a second grim reality: Despite our nation's commitment to equal opportunity, millions of Americans are far removed from the most basic opportunities, and the condition of disadvantage correlates strongly with race. (p. 20)
Opposition to affirmative action is not enough. A positive agenda must also include means to help those who among us who are economically and socially disenfranchised. These are the people for whom affirmative action is meaningless in their daily lives. What would make a real difference in their lives is control over their children's education, the ability to earn an honest living and acquire ownership of their homes. Here, Bolick's own efforts as pro-bono legal counsel to poor, underprivileged and mostly minority individuals point the way forward: Bolick's clients are fighting the system for the right to school choice, the chance to start a small business unencumbered by the regulatory reach of the state, or the opportunity to trade public housing tenantship for ownership. Bolick's description of the plight of taxi-cab driver and would-be small businessman Leroy Jones illuminates his view of the kind of effort that will restore the original "civil rights vision."
"Leroy Jones and his partners . . . did not seek a handout, or a minority set-aside, or any other special privilege. They sought their civil right to earn an honest living--a right they possess not because they are black but because they are Americans."
As Californians approach their historic opportunity to dismantle affirmative action, Clint Bolick makes a compelling argument why affirmative action must end--and why the end of affirmative action is only the beginning.
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Daniel McGroarty is author of "Break These Chains, the Battle for School Choice" (Prima Publishing, 1996). He served as Special Assistant to the President and Deputy Director of White House Speechwriting during the Bush I Administration.
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