End it, Don’t Mend it
Ending Affirmative Action: The Case for Colorblind Justice
by Terry Eastland
Basic Books. 229 pp. $23.00
In this book, Terry Eastland, a former official in the Justice Department and now the editor of Forbes MediaCritic, offers a compelling explanation of how we arrived at our pervasive system of racial preferences, and an equally compelling case for why and how it should be abolished.
Eastland traces the roots of affirmative action to a postwar shift in American law from colorblindness to color-consciousness. In the Japanese relocation cases of World War II, the Supreme Court, even as it approved the internment of Japanese-Americans, issued a ringing endorsement of the principle of racial equality. “Distinctions between citizens solely because of their ancestry,” the Court ruled in Hirabayashi v. United States (1943), “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Such affirmations came to be a source of inspiration and encouragement to the civil-rights movement in the 1950’s.
But in Brown v. Board of Education (1954), the movement’s most significant legal victory, the Supreme Court did not in fact pronounce it wrong for government to take race into account. On the contrary, Eastland writes, in holding “separate-but-equal” schools to be “inherently unequal”—and unconstitutional—the Court contended that blacks as a group suffer harm when denied contact with whites. By a complicated route, this group-centered reasoning laid a legal foundation for the open system of racial preferences of later years.
The turning point, in Eastland’s recounting, occurred a decade later. Although the Civil Rights Act of 1964 outlawed discrimination “on the ground of race, color, religion, or national origin,” within a year Lyndon Johnson was calling for “the next and the more profound stage of civil rights”—not equality before the law but, in Johnson’s words, “equality as a fact and equality as a result.” As Eastland points out, in practice this meant redefining discrimination from a wrong visited upon a specific individual to the statistical underrepresentation of a group; for how else could “equality as a fact and equality as a result” be measured?
In an astonishingly short period of time, the machinery of affirmative action was put into place, and Eastland retraces its workings. The Equal Employment Opportunity Commission, created to enforce the Civil Rights Act, was soon making employers responsible for racially balancing their workforces whether or not discrimination had been proved or even alleged. The Department of Health, Education, and Welfare twisted the law further by issuing regulations encouraging federally-funded universities to lower standards in order to permit greater numbers of minority students to enroll. Government agencies across the board came to establish so-called set-aside programs, giving advantages to minority firms seeking federal contracts.
This last form of affirmative action received a major boost from the Nixon administration, acting in part, in Eastland’s view, from the most cynical of motives: to “create tensions between two blocs of traditionally Democratic voters—union members and blacks.” But whether or not that was Nixon’s calculation, affirmative action has indeed continued to create tensions throughout American society.
It has done so, as Eastland shows, by spawning a system at once coercive and corrupt. Though often described by its defenders as “voluntary,” affirmative action is anything but. Failure to achieve statistical balance or to meet “goals and timetables”—an enduring euphemism for quotas—can lead to lawsuits, sanctions, and penalties. And the set-aside programs have created powerful incentives for malfeasance and bribery, with businessmen securing federal contracts by funneling kickbacks to minority businessmen acting as shills.
Given all this, it is hardly surprising that a popular backlash against affirmative action has long been smoldering, or that a far-reaching reappraisal is now under way. Even the Supreme Court itself has begun to revisit and scale back earlier decisions. But though the edifice has suffered some judicial blows, ultimately Eastland believes it will take more than court action to overturn a system so deeply entrenched. If affirmative action is truly to be brought to an end, the more politically responsive instruments of our democracy will have to lead the way.
Thus far there are few signs of that happening. President Clinton has tackled affirmative action by pledging to “mend it, not end it,” a slogan which, as Eastland shows, has amounted in practice to nothing more than a review of specific programs followed by a series of rearguard actions in their defense. As for the legislative arena, the single most important undertaking to date was the 1994 vote in Congress to repeal the Federal Communications Commission’s system of awarding tax-breaks to minority broadcasters, a change which President Clinton hesitantly signed into law. Since then, the Republican Congress has turned its attention elsewhere.
What then of the future? Some efforts to eliminate racial preferences are proceeding at the state level, most notably the California Civil Rights Initiative (CCRI), which next month will give voters a chance to outlaw reverse discrimination. Of course, even if CCRI passes, federal law will continue to take precedence. Still, Eastland believes the fate of CCRI will prove highly significant. A victory in California might embolden Republicans and moderate Democrats elsewhere to join together to do what should come naturally for politicians: voting for what is popular while also voting for what is right.
If and when the era of racial preferences and reverse discrimination does come to an end, there will be an honor roll of public figures and intellectuals who have devoted years of their lives to exposing the flawed premises and attacking the immoral ends of this misbegotten and deeply injurious enterprise. Terry Eastland’s name will be among them, for his articles over the decades in this magazine and elsewhere, for his earlier book Counting by Race (with William J. Bennett), and now for Ending Affirmative Action.