Will Affirmative Action Survive?
Only a few months ago, it seemed to critics and supporters alike that federally mandated programs of race and gender preference were, if not doomed to total elimination, then in serious jeopardy.
Conservative Republicans, emboldened by their 1994 congressional landslide, had effectively ended a longstanding, bipartisan consensus that had prevented any full discussion of affirmative action at the level of national politics. Overt opposition to preferential policies was no longer limited to Senator Jesse Helms and a few like-minded colleagues. Instead, proposals to roll back preferences were being advanced by such mainstream figures as Senate Majority Leader Bob Dole and Governor Pete Wilson of California. In what looked like a harbinger of things to come, Republicans had succeeded in eliminating a set-aside program for the communications industry, and another set-aside was dropped by the Federal Communications Commission because of the threat of litigation by white-owned businesses.
And then there was the California Civil Rights Initiative. Conceived by two college professors, CCRI called for the elimination of state-enforced preferential policies based on race, ethnicity, or gender, including the de-facto admissions quotas in the California university system. The sponsors of CCRI had originally tried to get their measure adopted by the state legislature. When that failed, they announced plans to place the proposal on the 1996 ballot as a public referendum, thereby ensuring that affirmative action would dominate the debate not only in California but, given the state’s crucial role in presidential elections, nationally as well. CCRI, in other words, sent elected officials a clear message that they no longer enjoyed the luxury of ignoring public discontent over America’s ever-expanding tangle of race regulations.
Meanwhile, in stark contrast to the confidence and apparent unity of its critics, liberal and Democratic supporters of affirmative action seemed confused, divided, and intimidated by the unexpected challenge to an orthodoxy which they had supported for three decades. Even the Clinton administration had been placed on the defensive; early press reports indicated that the President was actually giving thought to a major reduction in affirmative-action initiatives.
Conservative Republican ascendancy liberal Democratic disarray—these, combined with the public’s consistent and overwhelming opposition to most federal racial policies, convinced many in the early months of 1995 that the era of racial preferences was coming to an end. It was, however, a naive expectation.
Affirmative action, after all, is a policy which has survived for years in the face of widespread, and often angry, disapproval. It is also a policy whose potential constituency is quite formidable, encompassing blacks, certain immigrant groups, and women—in other words, over half the population. True, many women, Hispanics, and Asians are ambivalent about or in some cases hostile to the idea of group rights, but black Americans retain a powerful attachment to the principle of affirmative action, and many in the new black middle class have come to look on it as an entitlement—much as the elderly view Medicare or farmers regard crop subsidies. Support for affirmative action also enjoys the status of a litmus test of group loyalty for black elected officials and civil-rights leaders.
Nor does affirmative action lack for broad backing among predominantly white institutions. The business community has regularly spoken out against anti-quota legislation in the past, and is distinctly unenthusiastic about anti-preference proposals today, including CCRI. Officials at prestigious universities regard their racially balanced student bodies as a major achievement. Even the American Bar Association, in an unusual move, passed a statement endorsing affirmative action. And, most importantly, on the national political scene, the critics of affirmative action are not as united in their purposes, and the supporters not as disunited, as they might seem.
Republicans, to begin with, have discovered predictably enough that racial policy is a more complex matter than, say, the Endangered Species Act. Part of their problem is the history of Republican complicity in establishing the current system of preferences. It was Richard Nixon who, as President, approved the first federal initiative—the so-called Philadelphia Plan—requiring contractors to institute goals and timetables for minority hiring as a precondition for obtaining federal contracts. Nixon also strengthened the enforcement powers of the Equal Employment Opportunity Commission (EEOC) and appointed to the Supreme Court several Justices whose decisions paved the way for the growth of preferential programs.
Until now, moreover, most prominent Republicans have deviated little from the Nixon pattern: voting for affirmative-action legislation while railing against reverse discrimination at election time. Thus, Republicans routinely approved the various programs which reserved a percentage of government contracts for minorities and women, and found excuses to vote against anti-quota bills introduced by arch-conservatives like Jesse Helms. Republicans were also instrumental in pushing the racial gerrymandering of congressional districts, a self-interested policy which, by increasing the concentration of black Democratic voters in certain Southern states, contributed (modestly) to the GOP’s impressive recent gains in the region. The prominent role taken by Bob Dole and Pete Wilson in the anti-affirmative-action campaign is itself full of irony, since, as liberals never tire of pointing out, both have long records of support for preferences.
There is, to be sure, something hypocritical in the charge, advanced by Jesse Jackson and members of the Clinton administration, that Republican presidential candidates are now exploiting racial resentments and “politicizing” the race issue. On the contrary, it is the advocates of preference who for years thwarted open and sober debate on government race regulations, while those with reservations were smugly informed that their opinions amounted to a refined form of racism. Having been treated as pariahs or, at best, ignored, such critics might be excused for harboring the thought that politicizing the issue, or adopting unconventional tactics like CCRI, represents the only means of gaining the political world’s attention.
Nevertheless, the prospect of a presidential campaign organized around a racial theme has already raised concern among some prominent Republicans, including William J. Bennett, House Speaker Newt Gingrich, and Jack Kemp. Gingrich has urged Republicans to postpone action while he puts together a distinctively conservative anti-poverty program emphasizing community development and private entrepreneurship. Kemp has gone farther, threatening to disavow any Republican presidential campaign which “separates people by race and by gender.”
The apprehensions expressed by Gingrich and Kemp do not mean they have succumbed to proaffirmative-action arguments. Unlike some Republicans, Gingrich has voted against preferences and “diversity” measures in the past. Kemp also spurns the notion of group rights; his programs for inner-city development emphasize capitalist enterprise, not government paternalism. And he has recently condemned preferences and reparations as “wrong in principle and ruinous in practice.” What motivates both Kemp and Gingrich is something else: the conviction that Republicans can appeal to black voters who share the party’s social conservatism on issues like family and crime. A polemical offensive on racial preferences, they believe, will interfere with this strategy to expand the Republican political base.
There are, as it happens, modest signs of Republican inroads in black America. But the roster of Republican black elected officials remains quite small—two members of the House of Representatives, a few state officials, a handful of state legislators—and black support for Republican presidential candidates is still stuck in the single-digit range. Since the Republicans are now clearly identified as an anti-preference party, it is inconceivable that black voters who regard affirmative action as a touchstone issue will be swayed by empowerment proposals and enterprise zones. Nor does Gingrich’s plan for black economic advancement inspire a great deal of confidence; anti-poverty initiatives have a sorry history, and today’s search for a conservative anti-poverty blueprint seems as chimerical as yesterday’s search for a liberal one.
There are more fundamental problems as well: Republican ignorance of American racial history, lack of interest in the complexities of the racial debate, unfamiliarity with the condition of the black poor, and nervousness over being labeled the party of bigotry. For many Republicans, and particularly for many of the new generation of conservatives, race is alien terrain. In general they are more comfortable proposing an overhaul of environmental regulation, assailing the arts and humanities agencies, or criticizing the tax structure than taking on the reform of the country’s diversity regulations. Worse, they demonstrate little grasp of the far-reaching damage suffered by schools, universities, the political system, and other crucial institutions as a consequence of the liberal agenda on race. This makes them particularly inept at explaining why affirmative action is bad for America.
The Republicans have been fortunate in one thing: their nervousness over the last months has been offset, indeed more than offset, by the self-damaging belligerency of the nation’s black political leadership. From Representative Charles Rangel, who accused Republicans of harboring Nazi-like instincts, to Representative Kweisi Mfume, who threatened civil disobedience and boycott campaigns against states which eliminated preferential policies, the liberal black establishment has reacted as if the issue at stake were nothing less than a return to legal segregation.
Rangel’s invocation of the Nazis aside, the most outrageous statements were those of Jesse Jackson; his indiscriminate attacks on critics of affirmative action may, indeed, have driven a few undecided Americans into the anti-preference camp. Not content with comparing Governor Pete Wilson to George Wallace blocking black students at the schoolhouse door, Jackson likened Wilson as well to Susan Smith, the South Carolina mother who murdered her two little boys and blamed the crime on a black carjacker. Jackson also blasted Supreme Court Justice Clarence Thomas as a “traitor to the civil-rights tradition” for his votes against racial preference.
But if black political leaders have handled things badly, the same cannot be said of the liberal establishment in general. Supporters of preference have, in fact, launched something of a counter-campaign aimed at preserving the core policy. Although there is little evidence that their arguments have changed public opinion, the mere fact that preferential programs are being defended in public discussion has helped dispel the image of a policy imposed in stealth by an elite intent on skirting the normal channels of debate.
This, at any rate, was the message strongly conveyed by the presidential address on the subject given by Bill Clinton on July 18. Indeed, Clinton may one day be remembered as the President who not only asked Americans to tolerate affirmative action but actually celebrated the policy as, in his words, something that has been “good for America.” In endorsing a creed that has become indelibly associated with the notion of group as opposed to individual rights, Clinton revealed much not only about the course of contemporary liberalism but about his own core convictions.
Clinton’s speech also conveyed an almost limitless confidence in the competence and fairness of government. The government, he declared, had adopted a safe middle course between, on the one hand, simply ignoring the systemic patterns of discrimination in American society and, on the other, imposing a rigid schedule of quotas. While conceding that affirmative action did occasionally produce bias against white men, the President ascribed this to overzealous employers, but not to overly aggressive enforcement officials. The best cure for flawed government, he suggested, was more government.
The President did, of course, deliver a few, proforma words of caution. He stressed his opposition to quotas “in theory or practice”; promised that “once a program has succeeded, it must be retired”; and opposed reverse discrimination or “preference for people who are not qualified.” Yet despite a recently completed thorough review of about 160 federal affirmative-action programs, Clinton was able to point to no evidence of quotas; no programs whose success merited their elimination; and scarcely any cases of reverse discrimination or the promotion of the unqualified over the qualified. (As for a more relevant question, the promotion of the less qualified over the more qualified, this he conspicuously declined to take up.)
Finally, the President could not resist accusing critics of preferences of exploiting the “economic distress” of the American people. To oppose affirmative action, Clinton declared, gives them
a way of turning resentment against the minorities or against a particular government program instead of having an honest debate about how we all got into the [economic] fix we are in, and what we are going to do together to get out of it.
This idea—that the millions of Americans who oppose racial preferences are motivated by rank political cynicism—is all the more remarkable coming from the mouth of a President allegedly intent on “healing” national differences over race. But like Clinton’s embrace of affirmative action as “good for America,” it too says a good deal about contemporary liberal attitudes on race.
Like many liberals, Clinton has come to adopt a very different rationale for affirmative action from what it was originally designed to do—different and much more ambitious. To understand the new conception, a little history is in order.
The original affirmative-action initiative emerged out of a belief that the racial neutrality enshrined in the Civil Rights Act of 1964 would not suffice to change the face of American society. According to this reasoning, even if individual blacks were no longer being denied opportunities, blacks as a whole would nevertheless continue to be consigned to second-class citizenship, simply because the country’s economic and educational institutions functioned in a systematically discriminatory way. It was on the basis of this theory—known popularly as the doctrine of institutional racism—that the earliest affirmative-action plans called for lowering employment standards en masse, and for coercing corporations and government agencies into agreements which, in practice, often led to de-facto quotas.
Although these policies were unpopular with white Americans from the outset, they were grudgingly accepted by many on the grounds that blacks, who had recently been the objects of legal discrimination, arguably deserved some limited amount of compensatory justice. Over the years, however, the proposition that affirmative action was necessary to combat discrimination, or even the effects of past discrimination, became increasingly difficult to sustain. Employers met the conditions set down by enforcement agencies; employment and educational tests were changed, and personnel policies were adjusted to conform with guidelines established by the EEOC; and thousands of new businesses set their hiring policies entirely according to affirmative-action principles.
Faced with an increasingly shaky rationale, the advocates of preferences began to advance a new one: diversity. Like the original conception, diversity assumed an America in which racism (now joined by sexism) was rampant. But diversity was designed less to fight bias in particular instances than to create sweeping standards for the entire workforce, if not for the entire society. And where affirmative action had been intended, at least theoretically, to enhance the goal of societal integration, diversity celebrated difference and promoted “multiculturalism”—i.e., segregation. Implementing it necessitated a degree of racial and sexual consciousness virtually limitless in its application.
There are few figures in public life today as committed to the diversity idea as President Clinton. From the musical and literary selections at his inaugural ceremony, to his policy of setting aside one of every three positions in the new administration for women and minorities, to his having reserved the position of Attorney General for a woman, to the scrupulous balancing of his health-care task force according to race and gender, to the proposal advanced by that task force to impose a diversity system on the medical profession, the Clinton administration has sent an unmistakable message: as far as the government is concerned, America is a country that counts by race and gender.
The administration’s attitude was perhaps most vividly demonstrated in a case involving a public-school teacher in Piscataway, New Jersey. In 1989, the local school board had been confronted with the need to lay off one of two home-economics teachers—one white, one black, with equal seniority and comparable performance assessments. Even though blacks were well-represented throughout the faculty, the board dismissed the white teacher on purely racial grounds. She then sued, and the Bush administration, citing flagrant reverse discrimination, supported her action. The Clinton administration, however, abruptly reversed course and supported the school board. It had to do so on grounds other than discrimination against the black teacher, which was never an issue in this case; the grounds it came up with were “diversity.”
Given this pattern, it is hardly surprising that the much-touted review of federal programs commissioned by the President, and drawn on extensively in his speech, should have included a considerable amount of straightforward advocacy for the diversity principle. The report claims, for example, that the “competitiveness of our society and economy” depends upon building an “inclusive” economy, and adds that in science, education, and other fields, there will be “dangerous shortages of talent if we continue to draw the ranks of those professions so overwhelmingly from among white males only.” The suggestion that women and minorities offer abilities different from and in some ways superior to those of white men is echoed elsewhere in the assertion that diversity “is critical to the quality of certain institutions and professions.” Throughout, society’s equilibrium is measured by the standard of proportional representation, and any deviation from the norm is regarded as a major social wrong.
“Mend it, don’t end it,” the President said of affirmative action in his speech. But by and large, the goal of his administration has been not to “mend” it but to expand it, to prosecute it more aggressively, and to justify it wherever possible on grounds of diversity.
Still, the fact that the Clinton administration and some other liberals have begun to come clean about their position on affirmative action does not mean their position will prevail. Clinton’s speech received highly favorable reviews in the media, but one may doubt how much influence his passionate defense will have on the ongoing national debate. The impact of the speech itself was eroded within a few days by Jesse Jackson’s shrill campaign (described above) to dissuade the California Board of Regents from eliminating diversity standards in university admissions. And while Clinton’s remarks were warmly applauded by black Democrats, they elicited little response from other party leaders. Indeed, the Democratic Leadership Council (DLC), the group of moderate party figures which Clinton once chaired, subsequently issued a call for a major overhaul of affirmative action, including the outright elimination of government enforcement in hiring.
The Supreme Court has also gone on record, in Adarand v. Pena, opposing the right of the federal government to impose broad diversity standards on American institutions. Politically, the effects of Adarand are as yet hard to read. In the short term, it may actually simplify the challenge faced by the administration: to critics of affirmative action, Clinton can now point to the elimination of a few set-aside programs as evidence of his moderation and balance, while to supporters he can cite the authority of the Supreme Court to explain why reductions have become necessary. Republicans may respond in a similarly ambivalent fashion, continuing to carp about reverse discrimination while avoiding a legislative confrontation by arguing that the matter is being resolved by the courts.
In the longer term, though, Adarand may have a different effect. Especially when considered in conjunction with recent Court decisions restricting the racial gerrymandering of congressional districts, and limiting the judiciary’s ability to order sweeping actions by state and local governments to foster school integration, the case may actually signal the beginning of the end of racial preferences. But the road will almost certainly be a rocky one. Adarand will undoubtedly provoke a flurry of reverse-discrimination suits by white men who believe themselves to be the victims of an illegitimate preference system. And this, in turn, will intensify the formation of groups like the new Minority Enterprise Opportunity PAC, comprised of “disadvantaged” businesses which benefit from federal set-aside policies, and which have organized to ensure that a program envisioned as temporary will be elevated to the status of a permanent subsidy. And so it will go.
Supporters of affirmative action, including Bill Clinton, have called lately for an “honest debate” over its merits, in the hope that this will enhance its prospects for survival. In the words of Christopher Edley, a Harvard law professor who helped put together the administration’s review of federal programs, America will benefit from a discussion in which “the opposing sides attempt to deal fairly and honestly” with each other. A policy of candor would certainly be a great improvement over the old practice of concealment and evasion; but it is not likely to convince the public that affirmative action is, in fact, good for America. Indeed, the more we learn about the inner workings of our race-regulation system, the less acceptable it appears.
If candor fails to persuade Americans of the beneficial effects of affirmative action, what then? One can surely expect supporters to marshal other, less worthy, arguments, of which the trump is likely to be that any withdrawal of affirmative action would trigger a dangerous response from a marginalized and embittered black population. Indeed, something along these lines was heard during the controversy over racial preferences in the California university system, as defenders of quotas pleaded with the regents to avoid taking action that would exacerbate racial tensions.
Here we see the folly of racial preferences come full circle. Affirmative action was initially adopted in part because of fears of urban insurrection. Now Americans are told that preferences cannot be abandoned, lest there be an outbreak of racial strife. Logically, this implies that affirmative action can be eliminated only when blacks themselves propose to do so. But blacks will always support preferences, just as every other constituency group has always fought to retain its government benefits.
The most likely prospect, then, is for a long struggle. Given the commitment of the black establishment to the status quo, and the apparent unwillingness of many others in political leadership to entertain anything beyond the most superficial change, we can expect a debate that is bitter and polarizing. Averting such a bleak outcome will demand a serious effort on the part of Republicans to learn the facts about race relations, and to recognize why deregulating race is as important as deregulation in other spheres. It will also demand action by that large but generally silent group of Democrats who, having experienced the deadly impact of racial preferences on their own once-proud party, are in a position to make a unique intellectual contribution to the current debate. Whether either of these things will occur remains, alas, an open question.