Slouching Towards Gomorrah

by Robert H. Bork

  It is inevitable that once the favoritism game begins, other groups will demand their share of its benefits. Those demands are difficult to resist precisely because there is no respectable rationale for preferential policies. Thus, there is no criterion that can be stated to explain why other groups are not entitled to favoritism. It is necessary, of course, that the group demanding advantages be able to articulate some way in which they have been unfairly treated, but that is not at all difficult. Simple lack of proportionate representation will do.

  Here, as elsewhere, the scope of preferences keeps expanding. There are now 160 federal government preferences alone.9 The number of state and municipal preferential programs is probably countless, and the private sector also practices affirmative action. Universities routinely practice discrimination in admitting students and hiring faculty. I know young lawyers looking for academic positions who suffer the very considerable handicap of being white males. One of them was told by a law school faculty member on the appointments committee that the school was hiring but had only one place for a white male. At another school, the interviewer looked over the young mans resume and said, “This is very good. You have had two important clerkships, with Bork and then Scalia, and in the Solicitor General’s Office you have argued cases in the Supreme Court. You have accomplished a great deal in a short time.” He paused and then said thoughtfully, without a trace of irony, “Of course, it’s not as good as being black.“

  Affirmative action is being pressed into areas where it will prove positively dangerous. “The application of the principles of affirmative action to medical education is significant, implying, as it does, that their proponents’ ideological commitment makes them willing to risk the graduation of incompetent physicians.“10 The desire to graduate as many minority students as possible, who are often admitted with inadequate qualifications, creates a strong motivation for the administration to lower standards.

  Either voluntarily or under pressure from the government, a large majority of major corporations engage in affirmative action. Some make managers’ bonuses dependent on the preferential hiring of minorities and women. Paul Craig Roberts and Lawrence M. Stratton list seemingly endless programs of this sort.11 Mortgage lending criteria must not have an adverse disparate impact on minorities; even small businesses are harassed to achieve proportional representation of women and minorities in their work forces; minority preferences govern the allocation of government contracts, broadcast licenses, and scientific research grants; disciplining of federal government workers must be racially proportional; the U.S. Merit Systems Protection Board measures merit in part by a civil servant’s support for affirmative action; accreditation agencies take into account the proportion of minorities on the faculty and in the graduating classes of the schools they oversee.

  Group polarization has increased. One has only to look into university dining halls to see the various races and ethnic groups clumped together with their own kind. Racial antagonisms on campuses are vastly worse than they were thirty years ago, and students agree that preferential admissions policies are the cause. Meanwhile, in employment as in academic admissions, people are changing the ethnic backgrounds they claim to ones more likely to bring benefits.

  This has led to the systematic denigration of white, heterosexual males. Roberts and Stratton compare the rampant anti-Semitism among the educated classes even in pre-Hitler Germany to the assault in American universities on white males: “Like German anti-Semitism, the demonization of the white male is an intellectual movement.“12 And so it is. The most ardent advocates for affirmative action, and the most heated charges against white males are to be found in our universities. Nor is it hard to see why. In order to prefer certain groups it is necessary to harm others. Since the injustice of what is done is obvious, it is, unfortunately, human nature to justify it by imputing grave fault to the people harmed. For radical egalitarians who dislike the traditional culture of the West, moreover, it makes sense to attack those historically identified with that culture, white males. White females are exempt because it is politically astute to identify them as victims and so add to the coalition against white males, and because the powerful feminist movement is also hostile to Western culture. Besides, feminists make far more formidable adversaries than do white males.

  Starting the policy of preferential treatment was a serious mistake. Continuing it would be a disaster. There is no respectable rationale for continuation. The most frequently heard argument is the claim that active discrimination against minorities and women continues in this country. For reasons to be discussed, it is extremely doubtful that such discrimination is at all common. Let us assume, however, that it is. The attempted justification fails, nonetheless. There are laws upon laws forbidding discrimination in employment and promotion, in housing, in voting, in access to places of public accommodation, in lending, and much more. We have the Civil Rights Acts of 1866, 1871, 1964, 1968, and 1991; we have the Voting Rights Acts of 1965, 1975, and 1982. There is agency upon agency devoted to finding and ending discrimination: the Civil Rights Division of the Department of Justice, the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, the Department of Education’s Civil Rights Office, civil rights sections in various government agencies, as well as state and municipal laws and enforcement agencies. There are thousands of such agencies, and more than 100,000 government lawyers, investigators, and agents who spend hundreds of millions of dollars enforcing the laws and regulations. If that were not enough, there are laws providing for private lawsuits and an army of private attorneys bringing discrimination claims. If discrimination is provable, we have far more than adequate means of dealing with it.

  This means that affirmative action is generally applied to a pool of minorities who have suffered no discernible discrimination. Imagine a group of one hundred Hispanic men, ten of whom are to be admitted to Stanford under a policy of preference. In order to imagine that discrimination is being cured, it is necessary to suppose that, by a rare coincidence, preference is given to an individual who has actually suffered discrimination but cannot prove it, and may not even suspect it. If there are any victims of undetected discrimination in the pool of one hundred—suppose that there are ten—the likelihood is that none of them will receive preferential admission to Stanford or, at best, one or two will. Statistically, therefore, any person who has been the victim of unprovable discrimination will usually go without a remedy, while a person who has not been discriminated against will be given an undeserved benefit. It is difficult to see how a windfall for one cures an unsuspected injustice to the other. Affirmative action is simply irrelevant to discrimination.

  This point is not met by shifting the accusation to one of institutional or structural racism and sexism. Not only does it raise the problem of the pool, just discussed, but structural charges are merely silly, a way of insisting that there must be discrimination although no one can see it. Structural racism or sexism would have to manifest itself in a series of individual acts of discrimination. That equally or better qualified blacks, Hispanics, or women were denied jobs or promotions in favor of white males would be provable and anti-discrimination laws and agencies would come into operation. Structural theories are simply an admission that actual discrimination cannot be shown, coupled with an unsupported assertion that it must nevertheless be pervasive. Only modern liberals and people with a vested interest in discovering racism would advance such an empty theory.

  It is doubtful, in any event, that much discrimination occurs now that governments are no longer requiring it. Any fair-minded observer would have to admit that this country has undergone a drastic decline in racism. Discrimination is alleged much more often than it exists. When job discrimination complaints get a fair hearing, it usually turns out that the complainant was not hired because he or she had poor job qualifications.13 Recently, to take another instance, there have been widely reported allegations of discrimination in mortgage lending, b
ased on the observation that a higher percentage of blacks than whites are turned down. That kind of statistic, by itself, is meaningless, but most people, including government bureaucrats, take it as proving discrimination. The allegations were shown to be baseless by the fact that the default rates of the two races were the same. Had blacks been rejected who had financial qualifications equal to accepted white borrowers, so that blacks had to be more qualified to get loans, the default rates for whites would have been higher than those for blacks.

  Mortgage lenders, not surprisingly, were more interested in economics than in race. What is true in that business is true generally. The prevalence of discrimination is to be doubted because it is economically irrational in any business where rivalry between firms exists. The employer who hires the best people, regardless of skin color or sex, will have a significant competitive advantage over any rival who discriminates. Hence discrimination is likely only where rivalry is muted or nonexistent.

  As Thomas Sowell put it, “Prejudice is free but discrimination has costs.“14 That is the reason private businesses have resisted government-ordered discrimination. Even in South Africa, Sowell points out, private firms, run by folks presumably as racist as the government, persistently evaded the laws discriminating against blacks in employment. In the American South, bus companies publicly opposed and then tried to ignore municipal laws requiring separate seating of whites and blacks. The difference in attitudes was entirely due to the fact that governments bore none of the costs while businesses did. Discrimination against Jews was practiced far more often in regulated industries than in competitive ones, discrimination being costless where the firm was shielded from competition by regulators.15 Businesses would, of course, discriminate when it paid, usually when their customers preferred not to associate with minorities. Hence the days of segregated lunch counters in the South. The phenomenon of private business resistance to discrimination when discrimination costs money is universal.

  Sometimes preferential policies are justified as a form of reparations for a past history of discrimination. That would make sense, however, only if we ignore individuals and think of races as undifferentiated blocs whose members live forever. The individual beneficiaries and victims of past discrimination are now almost entirely unknowable. It is hardly sensible to prefer a person who has not suffered discrimination because a member of the same race or sex suffered it thirty years ago. Whatever happened in the past, in the present the policy does harm to guiltless individuals and benefits those who have suffered no harm. At some point, history must be accepted for what it is, history.

  Though affirmative action has few if any legitimate benefits, it does have heavy adverse effects. To start with what many will think the least significant, it is obvious that jettisoning the achievement principle for reward according to skin color or genital arrangements has a serious economic cost. Peter Brimelow and Leslie Spencer estimated that affirmative actions direct and indirect costs in 1991 were about $115 billion; opportunity costs added another $236 billion; the lowering of the gross national product may have been about 4 percent.16 Worse, it all may be wasted. The authors quote Charles Murray: “There’s hardly a single outcome—black voting rights, access to public accommodation, employment, particularly in white collar jobs—that couldn’t have been predicted on the basis of pre-1964 trend lines.” “That’s pretty devastating,” the authors say. “It suggests that we have spent trillions of dollars to create an outcome that would have happened even if the government had done nothing.“

  If affirmative action had merely squandered trillions to accomplish little or nothing, that would be a considerable misfortune; but the truth is worse than that. This misbegotten policy has caused serious damage to blacks and Hispanics, to whites and those of Asian extraction, and to relations between those groups. Though these consequences are felt throughout our society, we may use the venue of higher education to illustrate the point.

  Blacks and Hispanics do not currently perform as well on standardized tests or in school as do whites and Asian-Americans. If admissions were made on the basis of academic achievement, blacks and Hispanics would not be represented in the most prestigious and demanding universities in the same proportion that they bear to all university students. In their zeal to get minority numbers up, universities admit members of these groups with lower SATs and lower high school grades than they demand of whites and Asians. At many universities the practice is to compare black and Hispanic applicants only against others in the same ethnic group. The result is often startling differences in the academic qualifications of those groups and white and Asian students. Not only do some such admittees find themselves overmatched as they would not have at schools one rung down the prestige ladder, but the latter schools, deprived of minority students who would have done well there, must also admit lesser qualified minority students to get their numbers up. The result is a mismatching of universities and minority students at every level. This probably accounts for the higher drop-out rate for students who would have gotten good educations and graduated had the universities not done them so harmful a favor. Since everyone knows about affirmative action, those who do graduate are likely to be suspected by prospective employers and fellow employees of not really having the credentials their diplomas suggest.

  Perhaps even worse than this, overmatching minority students may lead them to reject the standards for achievement that they will need to succeed after graduation. Sowell points out that the overmatched black or Hispanic student who does not keep up with his classmates has a choice. He can admit to himself that he is not qualified to compete at this level or, in an effort to retain his self-respect, he can attack as illegitimate the standards by which he is judged. It is hardly surprising that many choose the latter course. Most humans would. But a student who rejects the criteria by which our society judges achievement is himself handicapped, probably for life. The admissions office has done him no favor.

  The problem is not simply that minority students are placed in universities where they have difficulty competing. The recipient of preferential admission has his self-doubt increased, which will in turn tend to encourage race-holding and underperformance. It is now fashionable to speak of seeking diversity, but the change in terms does not disguise the fact of preference. Whites seek innocence through absolution for their treatment of blacks in the past, while blacks seek power, which they can achieve by playing on white guilt. Shelby Steele writes,

  [Diversity became a golden word. It grants whites an egalitarian fairness (innocence) and blacks an entitlement to proportionate representation (power).

  But the essential problem with this form of affirmative action is the way it leaps over the hard business of developing a formerly oppressed people to the point where they can achieve proportionate representation on their own (given equal opportunity) and goes straight for the proportionate representation. This may satisfy some whites of their innocence and some blacks of their power, but it does very little to truly uplift blacks.17

  Of course, no minority (or majority either) will achieve proportionate representation in all fields of endeavor. Neither sex has done that, nor has any ethnic group. But Steele’s point is entirely valid: preferential policies do not build the incentives for individual development that are necessary to uplift a formerly oppressed people, or anybody else for that matter.

  The mistake the universities and society have made is to treat blacks and Hispanics by different standards from the rest of us. Christopher Lasch denounced the notion that “respect for cultural diversity forbids us to impose the standards of privileged groups on the victims of oppression.” He calls this “clearly a recipe for universal incompetence (or at least for a disastrous split between the competent classes and the incompetent).“18 A split between the competent classes and the incompetent would be disastrous for social stability. A more likely outcome is that if standards are lowered for minorities, they will also eventually be lowered for others. Since “privileged groups�
�� and “victims of oppression” occupy the same classrooms and take the same tests, it will be impossible to demand different standards of the two. Just as the training of male cadets was scaled back to levels at which female cadets can perform, so educational standards will suffer in civilian universities if the standards of the privileged are not enforced on the formerly oppressed.

  If preferential admission policies for blacks and Hispanics in colleges damages them, it certainly works a serious injustice on those who lose out because of preferences to others. A law professor referred to these results of affirmative action as “transitional inequities.” That is a way of avoiding thinking about what you are doing. What the universities and employers are doing is inflicting permanent harm on people who have done nothing wrong. The inequities are not transitional or temporary for those who lose what they deserve on the merits because of their race or sex. If a white male does not get into Yale because of his race, he does not get into Yale forever, and chances are he forever does not get into Harvard, Stanford, etc. either. (Or, if he does, some other white male gets left out.) He may also not get the job he wants and that his talents and achievements qualify him for; he may well not get the promotion he has earned. Perhaps in ten or twenty years some other white male will be treated fairly, but that does not restore the life the first one who endured discrimination deserved to have. The damage to the individual is permanent, not transitional.