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.