Some opponents of the bill were concerned that it would lead to quotas and timetables that required employers to hire or promote specific numbers of minorities. During the legislative debate, defenders insisted that this would not happen. Attempting to address skeptics, Senator Hubert Humphrey, the lead sponsor, noted that the measure “does not require an employer to achieve any kind of racial balance in his work force by giving any kind of preferential treatment to any individual or group.” The legislation, he said, required “an intention to discriminate” before an employer would be considered in violation of the law. But as federal courts and government agencies began enforcing the new civil rights law, it didn’t take long for the concept of equal opportunity to fall by the wayside, to be replaced by a concept of equal results. Policies that initially said people must be judged without regard to race and sex evolved into policies that required the consideration of those characteristics. The goalposts had moved. A year after the Civil Rights Act passed Lyndon Johnson announced that it was time for the “next and more profound stage of the battle,” which he described as a battle for “not just equality as a right and a theory but equality as a fact and equality as a result.”
Equal outcomes may be a noble objective, but nothing in human history suggests that they are realistic. Different groups have different backgrounds and interests and skills and sensibilities. Success and failure is not randomly distributed. By moving the public-policy emphasis away from equal opportunity, where it belonged, and toward some fanciful notion of racially proportionate results, Johnson was laying the groundwork for a civil rights industry that to this day insists that racially disparate policy outcomes are proof of discrimination, regardless of the policy’s intentions.
In the American legal system, the burden of proof is on the prosecution in criminal cases and on the plaintiff in civil cases. But civil rights cases began to deviate from this tradition in 1971, when the Supreme Court handed down its decision in Griggs v. Duke Power Co. At issue in the case was Duke’s hiring criteria for certain jobs, which included a high-school diploma and a minimal score on an IQ test. The plaintiffs argued that those requirements disqualified too many black job applicants, and amounted to employment discrimination. The court agreed, ruling that the burden of proof is on the employer when hiring criteria has a “disparate impact” on minorities. If minorities were underrepresented in a company’s workforce, the employer now had to prove that discrimination was not the reason. The court said that even if the hiring requirements were “neutral on their face, and even neutral in terms of intent,” they could still violate the 1964 Civil Rights Act. Differences in outcomes were now prima facie evidence of discrimination. We had moved from a focus on the rights of minority individuals to the preferential treatment of minority groups. In less than a decade, the goal had shifted from equal opportunity to statistical parity. And people who initially had been sympathetic to the black civil rights movement would feel betrayed.
“The expectation of color-blindness that was paramount in the mid-1960s has been replaced by policies setting a rigid frame of numerical requirements. They are what we have in mind today when we speak of affirmative action,” wrote Nathan Glazer, the Harvard sociologist, back in 1987. “Whatever the term meant in the 1960s, since the 1970s affirmative action means quotas and goals and timetables.”1 Glazer’s analysis is still true, only more so. In 2011 the Congressional Research Service, which provides policy analysis to Congress, issued a report titled “Survey of Federal Laws Containing Goals, Set-Asides, Priorities, or Other Preferences Based on Race, Gender, or Ethnicity.” The document is thirty-six pages in length, and the summary describes it as “a broad, but by no means exhaustive, survey of federal statutes that specifically refer to race, gender, or ethnicity as factors to be considered in the administration of any federal program. Such measures may include, but are not limited to, goals, timetables, set-asides, quotas, priorities, and preferences, as those terms are generally (however imperfectly) understood.”
Commenting on the report, Peter Kirsanow, a member of the U.S. Commission on Civil Rights, noted that in 1995 there were 172 federal statutes that granted “preferences in employment, contracting, or awarding federal benefits on the basis of membership in a preferred class.” By 2011 that number had climbed to 276, said Kirsanow, writing:
When first employed more than 40 years ago, part of the rationale for affirmative-action programs was that they were necessary to remedy specific instances of discrimination by the federal government against certain minority groups. Yet the further we get from the era of widespread discrimination against certain minority groups, the more the federal government discriminates in favor of such groups.2
No matter its original meaning or intent, affirmative action in practice today is racial discrimination. Some supporters will even admit this—and they get annoyed when fellow supporters pretend otherwise. In his book The Audacity of Hope, Barack Obama posits that affirmative-action programs, when properly structured, “can open up opportunities otherwise closed to qualified minorities without diminishing opportunities for white students.” Randall Kennedy, a Harvard law professor and affirmative-action advocate, takes Obama to task for denying the obvious: When special efforts are made to accommodate some, you are necessarily diminishing opportunities for others.
Acutely sensitive to charges that he supports racial favoritism that discriminates against whites, Obama defines affirmative action in a fashion meant to drain it of controversy. . . . Racial affirmative action does distinguish between people on a racial basis. It does discriminate. It does redistribute resources. It does favor preferred racial categories of candidates, promoting some racial minorities over whites with superior records. It does generate stigma and resentment. These issues cannot usefully be hidden for long behind verbal tricks.3
A key difference between Kennedy and Obama is that the latter is a politician trying to obscure the true nature of affirmative-action policies in order to maintain public support for them. A New York Times poll in 2013 showed that “more than half of Americans, 53 percent, favor affirmative action programs for minorities in college admissions and hiring,” but the story added that “other surveys that frame the question in terms of giving minorities ‘preference’ find less support.”4 Thus, Obama’s description of affirmative action wins far more public support than Kennedy’s. Put another way, the more accurately you describe affirmative action, the worse it polls.
In fact, surveys going back decades—even those that avoid words like “preferences” but frame the question fairly—have shown that most people, including a majority of blacks, oppose racial double standards. A 2001 Washington Post poll asked: “In order to give minorities more opportunity, do you believe race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college, or that hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race or ethnicity?” Ninety-two percent of all respondents, and 86 percent of blacks, answered that such decisions “should be based strictly on merit and qualifications other than race/ethnicity.” Similarly, a 1997 New York Times/CBS News poll found that 69 percent of all respondents, and 63 percent of blacks, said that “race should not be a factor” when asked how “equally qualified college applicants” should be assessed. “Despite its wide currency,” wrote journalist Stuart Taylor, “‘affirmative action’ is a misleading phrase, because most Americans interpret it as including aggressive antidiscrimination measures, recruitment and outreach efforts, and preferences for poor people to promote genuine equality of opportunity—policies that are in fact supported by almost all opponents of racial preferences.”5
Foes of racial preferences have been waiting for decades for the Supreme Court to denounce this subsequent perversion of legislation, originally intended only to ensure that everyone got a fair shot. “It seems that almost every year since the middle 1970s,” wrote Glazer,
we have awaited with hope or anxiety the dete
rmination of some major case by the Supreme Court, which would either tell us that affirmative action transgressed the “equal protection of the laws” guaranteed by the Fourteenth Amendment and the apparent commitment to color-blindness of the Civil Rights Act of 1964, or, on the contrary, determine that this was a legitimate approach to overcoming the heritage of discrimination and segregation and raising the position of American blacks.”6
The high court’s 2003 decision in Grutter v. Bollinger upheld the use of a race-conscious admissions policy at the University of Michigan Law School. The court said that “student body diversity is a compelling state interest” that can trump the Constitution’s core equal protection principles. Helpfully, it added that “all governmental use of race must have a logical end point.” Unhelpfully, it failed to impose one.
Fisher v. the University of Texas at Austin, a 2013 decision, was yet another Supreme Court punt. The plaintiff, Abigail Fisher, said that the university had discriminated against her as a white woman in rejecting her application. The justices remanded the case to a lower court to review the issue under a new legal standard. As the New York Times reported, “The 7-to-1 decision avoided giving a direct answer about the constitutionality” of the school’s affirmative-action program.7
Justice Clarence Thomas’s concurrence in Fisher noted that he would have not only held that the University of Texas’s admissions program violated the Equal Protection Clause of the Constitution but also struck down the diversity rationale for racial preferences that the court countenanced in Grutter. For Thomas, state-sponsored racial discrimination is state-sponsored racial discrimination. And whether it’s being advocated by 1950s-era white segregationists or twenty-first-century black liberal elites like Barack Obama and Randall Kennedy, it’s unconstitutional. He wrote:
Unfortunately for the University, the educational benefits flowing from student body diversity—assuming they exist—hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then . . . the alleged educational benefits of diversity cannot justify racial discrimination today.
Thomas then went a step further, getting at the essence of what affirmative-action advocates are really positing:
While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. . . . The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.
In an earlier opinion, Adarand Constructors, Inc. v. Peña, which involved racial preferences for minority businesses, Thomas also took on affirmative-action do-gooders.
That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.
Affirmative action is now approaching middle age. We are nearly five decades into this exercise in social engineering. And aside from the question of its constitutionality, there remains the matter of its effectiveness. Do racial preferences work? What is the track record? Have they in fact helped the intended beneficiaries? How much credit do they deserve for the minority gains that have occurred? Russell Nieli, a political scientist at Princeton, wrote:
While the first of the national “affirmative-action” initiatives—Richard Nixon’s Philadelphia Plan for opening up jobs in the urban construction industry—did focus on the black inner-city poor, it proved to be the exception as recipients of racial preferences quickly came to be the better-off, not the truly needy. . . . Those who once occupied the preeminent place in public policy concern—those “hobbled by chains,” as Lyndon Johnson called them in his Howard University address, or the “truly disadvantaged,” as William Julius Wilson later described them—fell off of the national radar screen.”8
There is no question that black poverty fell and that the professional class swelled in the decades following the implementation of racial preferences. In 1970 blacks comprised 2.2 percent of physicians, 1.3 percent of lawyers, and 1.2 percent of engineers, according to census data. By 1990 those percentages had more than doubled. In 1967, just 5.8 percent of the black population earned more than $50,000 per year. By 1992 the proportion had climbed to 13 percent. Liberals automatically credit affirmative action, of course, but note what was already happening prior to the introduction of preferential policies in the late 1960s and early 1970s.
“By 1970 over a fifth of African-American men and over a third of black women were in middle-class occupations, four times as many as in 1940 in the case of men and six times as many in the case of women,” wrote Stephan and Abigail Thernstrom, coauthors of America in Black and White. The authors note that between 1940 and 1970 the number of black schoolteachers nearly quadrupled, to almost a quarter of a million, while the number of social workers and registered nurses rose by even more.
Thus, there was a substantial black middle class already in existence by the end of the 1960s. In the years since, it has continued to grow, but not at a more rapid pace than in the preceding three decades, despite a common impression to the contrary. Great occupational advances were made by African Americans before preferential policies were introduced.9
The drop in black poverty that preceded the war was even more dramatic. In 1940 the black poverty rate was 87 percent. By 1960 it had fallen to 47 percent, a 40-point drop that predated not only affirmative action but the passage of landmark civil rights bills that liberals would later credit with the steep decline in black poverty. Did affirmative action play a role in reducing the percentage of poor blacks? If so, it wasn’t much of one. In 1970, 33.5 percent of blacks would be living below the official poverty line. In 1990, two full decades of affirmative action later, it would be 31.9 percent. Affirmative action deserves about as much credit for the decline in black poverty as it deserves for the rise of the black middle class. In both cases, racial preferences at best continued a trend that had already begun. And in both cases the trend was considerably stronger in the decades immediately preceding affirmative-action policies than in the decades immediately following their implementation. If, as the NAACP claims every time someone spots a Confederate flag at a parade, white racism is a major barrier to group progress, how can it be that black people were rising out of poverty and into the middle class at a faster clip when racism in the United States was legal, socially acceptable, and rampant—none of which is the case today?
Blacks as a group, and poor blacks in particular, have performed better in the absence of government schemes like affirmative action. That’s not an argument for returning to Jim Crow; civil rights are fundamental to a free society, and it was wrong to deny them to blacks. But it does suggest that there are limits to social engineering that arrogant politicians and public-policy makers continue to ignore.
The growth of minority professionals is encouraging, but affirmative-action policies were sold as a way to remedy the plight of the black underclass. And empirical data continue to show that isn’t happening. Under affirmative action, low-income blacks have fallen farther behind. Between 1967 and 1992, incomes for the wealthiest 20 percent of blacks rose at approximately the same rate as their white counterparts. But the poorest 20 percent of blacks saw their incomes decline, at more than double the rate of comparable whites over the same ti
me period. Income disparity among blacks increased at a faster rate than income disparity among whites.10 This trend, which social scientists call “income segregation,” has actually worsened in more recent years.
“Segregation by income among black families was lower than among white families in 1970, but grew four times as much between 1970 and 2007,” according to a 2011 study by two Stanford University scholars. “By 2007, income segregation among black families was 60 percent greater than among white families. Although income segregation among blacks grew substantially in the 1970s and 1980s, it grew at an ever faster rate from 2000 to 2007, after declining slightly in the 1990s.”11 Again, empirical data showed that in an era of racial preferences, quotas, and set-asides ostensibly intended to help the black poor, that subset had regressed.
Of course, liberals would much rather accentuate the positive, or at least what they believe to be the beneficial results of color-conscious policies. Hence, proponents credit affirmative action with the increase in black college students and contend that ending double standards in admissions would reduce their numbers and decimate the black middle class. But is this another example of affirmative action being oversold as crucial to the success of blacks?
Affirmative action in higher education initially meant greater outreach. Until the early 1970s the goal was to seek out minorities in areas—such as the black inner city—that college recruiters at elite institutions had previously ignored. But it soon became clear that these schools couldn’t possibly find a critical mass of blacks who were qualified, so they began lowering the admissions requirements for black applicants. The history of affirmative action in academia since the 1970s is a history of trying to justify holding blacks to lower standards in the name of helping them.
It’s no great shock that top schools would have trouble finding blacks with the same qualifications as Asian and white applicants. Black children are more likely to attend the lowest-performing elementary schools. They leave high school with the reading and math skills of an eighth grader. And anti-intellectualism permeates black culture. “Although inequality in academic preparation is not surprising, the magnitude of the gaps is startling,” wrote University of Chicago sociologists Richard Arum and Josipa Roksa, who conducted a survey for their 2011 book, Academically Adrift.
Please Stop Helping Us_How Liberals Make It Harder for Blacks to Succeed Page 14
