September 2009
America’s war over affirmative action has gone on
longer than any of the country’s military conflicts, and over the decades each
side of this debate has spawned a vast literature of argument. So I feel some
dread in seeing the debate newly enlivened today. Yet the Sotomayor nomination,
the Supreme Court’s decision in the Ricci case and the election of our
first black president make it inevitable.
What is the future of group preferences in America?
Doesn’t a black president render them obsolete? Or does an incident like the
arrest of Harvard professor Henry Louis Gates – with its implication of racial
profiling – point to the continuing need for affirmative action?
Unfortunately, this preoccupation with preferences
may be a fool’s errand. With black youths performing worse on the SAT in 2000
than in 1990, the obsession with affirmative action may only help us avoid the
more troubling reality: the ongoing underdevelopment that keeps so many blacks
non-competitive.
It is important to remember that the original goal
of affirmative action was to achieve two redemptions simultaneously. As society
gave a preference to its former victims in employment and education, it hoped to
redeem both those victims and itself. When America – the world’s oldest and most
unequivocal democracy – finally acknowledged in the 1960s its heartless betrayal
of democracy where blacks were concerned, the loss of moral authority was profound. In their monochrome whiteness, the institutions of this society –universities, government agencies, corporations – became emblems of the very evil America had just acknowledged.
Affirmative action has always been more about
the restoration of legitimacy to American institutions
than the uplift of blacks and other minorities. For 30 years after its
inception, no one even bothered to measure its effectiveness in minority
progress. Advocates of racial preferences tried to prove that these policies
actually helped minorities only after 1996, when California’s Proposition 209
banned racial preferences in all state institutions, scaring supporters across
the country.
But the research following from this scare has been
politicized and discredited. Most important, it has completely failed to show
that affirmative action ever closes the academic gap between minorities and
whites. And failing in this, affirmative action also fails to help blacks
achieve true equality with whites – the ultimate measure of which is parity in
skills and individual competence. Without this underlying parity there can never
be true equality in employment, income levels, rates of home ownership,
educational achievement and the rest.
But affirmative action has been quite effective in
its actual, if unacknowledged, purpose. It has restored moral authority and
legitimacy to American institutions. When the Supreme Court seemed ready to
nullify the idea of racial preferences in the 2003 University of Michigan
affirmative action cases, more than 100 amicus briefs – more than for any other
case in U.S. history – were submitted to the court by American institutions in
support of group preferences. Yet there was no march on Washington by tens of
thousands of blacks demanding affirmative action, not even a threat of such a
move from a people who had “marched” their way to freedom in the ’60s. In 2003,
the possible end of racial preferences did not panic minorities; it panicked
institutional America.
So the question that followed from the Michigan
cases – how long will minorities need some form of racial preferences? – is the
wrong question. A better question is: How long it will take American
institutions to feel legitimate without granting racial preferences? After the
Michigan cases, Justice Sandra Day O’Connor famously surmised that blacks would
need preferences for 25 more years. Sadly, it will probably take blacks longer
than that to completely overcome nearly four centuries of oppression. But
O’Connor was probably calibrating institutional America’s timeline to retrieve
legitimacy. She wasn’t measuring the achievement of true equality.
How will the law continue to define and uphold
group preferences?
We are headed now, it seems, into a legal thicket
created by the incompatibility of two notions of equality: “disparate impact”
and “equal protection under the law.” The former is a legalism evolved from
judicial interpretations of Title VII of the 1964 Civil Rights Act; the latter
is a constitutional guarantee. Disparate impact lets you presume that an entire
class of people has been discriminated against if it has been disproportionately
affected by some policy. If no blacks do well enough on a firefighters promotion
exam to win advancement while many whites do (Ricci v. DeStefano), then
this constitutes discrimination against blacks.
Disparate impact has two inherent corruptions: It
allows discrimination to be established by mere presumption, and it makes
victimization collective. By disparate impact, all blacks in the New Haven,
Conn., fire department were presumed victims of discrimination without any
evidence that the city actually discriminated against any of them. And the city
threw out the test because it knew that a failure to promote blacks (while
whites were being promoted) would automatically make the city guilty of and
liable for discrimination. The Ricci case illustrates the irrationality
of disparate impact. As New Haven threw out the firefighter’s test because of
its disparate impact on blacks, it created a disparate impact on whites.
Racial preferences only extend the misguided logic
of disparate impact. They, too, presume discrimination without evidence. All
blacks, even President Obama’s children, are eligible for the redress of a
racial preference. We must presume that, even in the Sidwell Friends School by
day and the White House by night, the president’s daughters – as blacks –
encounter a racial animus that so predictably disadvantages them that the
automatic redress of a racial preference is required. Obama himself has pointed
out the absurdity of this, and yet privileged blacks such as his daughters
remain the most sought-after minorities by admissions
officers seeking “diversity.”
Disparate impact and racial preferences represent
the law and policymaking of a guilty America, an America lacking the moral
authority to live by the rigors of the Constitution’s “equal protection” – a
guarantee that sees victims as individuals and requires hard evidence to prove
discrimination. They are “white guilt” legalisms created after the ’60s as fast
tracks to moral authority. They apologize for presumed white wrongdoing and
offer recompense to minorities before any actual discrimination has been
documented. Yet these legalisms are much with us now. And it will no doubt take
the courts a generation or more to disentangle all this apology from the law.
But fortunately race relations in America are not
much driven by the courts. We argue over affirmative action and disparate impact
because we don’t know how to talk about our most profound racial problem: the
lack of developmental parity between blacks and whites. Today a certain
contradiction runs through black American life. As many of us still suffer from
deprivations caused by historical racism, we also live in a society where racism
is simply no longer a significant barrier to black advancement – a society so
sensitized that even the implication of racism, as in the Henry Louis Gates
case, triggers a national discussion.
We blacks know oppression well, but today it is our
inexperience with freedom that holds us back almost as relentlessly as
oppression once did. Out of this inexperience, for example, we miss the fact
that racial preferences and disparate impact can only help us –even if they were
effective – with a problem we no longer have. The problem that black
firefighters had in New Haven was not discrimination; it was the fact that not a
single black did well enough on the exam to gain promotion.
Today’s “black” problem is underdevelopment, not
discrimination. Success in modernity will demand profound cultural changes –
changes in child-rearing, a restoration of marriage and family, a focus on
academic rigor, a greater appreciation of entrepreneurialism and an embrace of
individual development as the best road to group development.
Whites are embarrassed to speak forthrightly about
black underdevelopment, and blacks are too proud to openly explore it for all to
see. So, by unspoken agreement, we discuss black underdevelopment in a language
of discrimination and injustice. We rejoin the exhausted affirmative action
debate as if it really mattered, and we do not acknowledge that this
underdevelopment is primarily a black responsibility. And yet it is – as
historically unfair as it may be, as much as it seems to blame the victim. In
human affairs we are responsible not just for our “just” fate, but also for our
existential fate.
But continuing black underdevelopment will flush
both races out of their postures and make most discussions of race in America,
outside a context of development, irrelevant.
Shelby Steele is
a senior fellow at the Hoover Institution at Stanford University and the author
of White Guilt: How Blacks and Whites Together
Destroyed the Promise of the Civil Rights Era.
The Washington Post, July 26, 2009.
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