In his new book, Hugh Davis Graham, a historian at the University of Maryland, has made a significant contribution to our understanding of one of the critical social-policy issues of our time. The essence of the story lies in the transformation of what Graham calls Phase I of the civil-rights revolution—the fight to end legalized discrimination against blacks—into the “gray contrivance of statutory law and bureaucratic imagination” (Phase II) we are living with today. In over five hundred pages of text and notes he traces this shift from a movement to obtain equal rights—enunciated by Martin Luther King, Jr., at the great 1963 March on Washington, as an effort to build an America in which children would be measured by the content of their character and not by the color of their skin—to a system of distributive or compensatory justice that has distorted our political values and been the cause of ever-growing racial strife.
The transformation began in the very midst of the great triumph of the civil-rights revolution, namely, passage of the omnibus Civil Rights Act of 1964. During the fight for this legislation such figures as Whitney Young of the Urban League and James Farmer of the Congress of Racial Equality (CORE) began to entertain the notion of “affirmative-action” programs designed along the lines of New Deal models like the National Labor Relations Act. They were abetted in their thinking by a group of intellectuals and social activists, including Herbert Hill of the staff of the NAACP and Alfred W. Blumrosen, a professor of law at Rutgers. For all of these men, the main issue was no longer one of simply wiping out racial discrimination and thus ensuring equality of opportunity. “Equal treatment was desirable,” Graham summarizes their argument, “but not where it produced unequal results.” To arrive at equal results, they favored a system of explicit racial preference.
At the time, there was a sharp reaction against this idea from President Kennedy; from Bayard Rustin, deputy director of the March on Washington; from Walter Reuther and George Meany representing the labor movement; and from many other figures within American liberalism. Then-Vice President Johnson objected that the race-conscious policies favored by Hill and the others would amount to a new form of discrimination and were “merely another way of freezing minority-group status in perpetuity.” Opposition was also expressed by Clarence Mitchell, then-chief Washington lobbyist of the NAACP and a key figure in the development of Phase I. “The history of the reason why we do not include this,” he told a congressional panel, “is sadly and surely proven, that the minute you put race on a civil-service form . . . you have opened the door to discrimination. . . . ” Within Congress itself, Senator Hubert H. Humphrey, chief congressional architect of the Civil Rights Act, adamantly denied that the Act in any way endorsed giving “preferential treatment to any individual or group.”
But the political tide in Washington and in the centers of elite opinion was running against Mitchell and Humphrey. Very soon, and with the more or less conscious connivance of President Johnson, the activist understanding of the civil-rights revolution prevailed and became institutionalized. Old-line civil-rights groups like the NAACP, initially resistant, quickly fell into step, and indeed became the most ardent advocates of the new dispensation. The legal staffs of these organizations, and academics like Blumrosen, were drawn upon to fill personnel slots in the administrative apparatus created by Phase I—the Office of Federal Contract Compliance, the Equal Employment Opportunities Commission, etc.—which became, in effect, the governmental arm of the new civil-rights “establishment.” As Graham narrates in fascinating, if excruciating, detail, there followed a whole variety of policies mandated by the courts and administered by the bureaucracy, including the imposition of racial preferences—quotas, in short—in employment practices and university admissions, busing for school desegregation, and set-asides in government contracts.
It is not surprising, perhaps, that the development of Phase II should have been accelerated by Lyndon Johnson, a Southern populist who was emotionally committed to bringing blacks and other minorities more fully into American life. The real surprise is that the program moved forward steadily under Richard Nixon. Graham suggests that, having consolidated his right wing and captured the rank-and file of organized labor, Roman Catholics, and evangelical Protestants, Nixon sought opportunistically to add blacks to the “emerging Republican majority” (in Kevin Phillips’s phrase).
But whatever his motive, it is a fact that under Nixon, for example, the Office for Civil Rights in the Department of Health, Education, and Welfare put into effect an aggressive program requiring universities to set targets for preferential hiring on grounds of race (and sex) in order to remain eligible for federal contracts, while Nixon’s Secretary of Labor, George Shultz, in Graham’s words “a systematic manager of . . . organizational lines and boxes,” went out of his way to appoint a black former professional football player, Arthur A. Fletcher, as the point man for equal-opportunity contract compliance. Fletcher kicked off his new career in 1969 by revising the “Philadelphia Plan” (created two years earlier to force integration in the recalcitrant contruction-trade unions) into a scheme requiring fixed and specific “goals or standards for percentages of minority employees,” or, in other words, proportional representation by race of the kind explicitly banned by the 1964 Civil Rights Act. By early 1970, Graham reports, the Labor Department had issued rules extending the supposedly limited Philadelphia Plan model “to basically all of the activities and facilities of all federal contractors—which by Arthur Fletcher’s estimate covered from one-third to one-half of all U.S. workers.”
Graham’s account ends in 1972, but the story he tells has continued to unfold with inexorable logic. As the 70’s progressed, the pro-quota forces captured not only the administrative agencies and (often) the courts but the entire rhetoric of civil rights. As Graham himself notes, it soon became de rigueur even to belittle the heroic achievements of Phase I. Thus the black historians Mary Berry and John Blassingame, in The Struggle for Black Equality (1 982), dismissed the Civil Rights Acts of 1964 and 1965 in three sentences, observing that “political action did not improve the overall black condition,” while another historian of the period claimed that the civic gains won in the 50’s and 60’s had been purchased at the price of widespread economic failure. (In fact, a majority of blacks entered the American middle class in relatively few years.)
With the advent of the Reagan presidency, an effort was mounted at last to restore federal civil-rights agencies to the original purposes for which they were brought into existence—fighting discrimination. Although the administration was promptly denounced for trying to move the country back to the era of institutionalized racism, the truth is that it was acting in concert with the beliefs of the vast majority of the American people, including many blacks. With extraordinarily few exceptions, Americans in general supported Phase I of the civil-rights revolution. They were also in favor of “soft” affirmative-action programs that would help ensure equality of opportunity. They have never been willing, however, to accept “hard” affirmative action in the form of racial preferences, reverse discrimination, and quotas.
In retrospect, it is possible to see that in some respects—most notably through the appointment of new justices to the federal courts and the Supreme Court—Reagan’s efforts succeeded, but only partially. As for President Bush, indications so far are that he walks in the tradition of Nixon rather than in that of Reagan—for instance, he recently appointed Arthur Fletcher to head the U.S. Commission on Civil Rights. It remains to be seen, moreover, what Bush will do to head off the effort now under way in Congress to override recent anti-quota decisions of the Supreme Court.
It is ironic that as redistributive approaches to social inequality are in retreat all over the world, they continue to remain strong in the United States. Sadder still is that these approaches continue to be pursued in the face of conclusive evidence that (as critics on the Left like William Julius Wilson and on the Right like Glenn Loury have noted) they benefit only the black middle class, while leaving the black underclass, in Hugh Graham’s words, “further isolated and decaying.” In illuminating the political processes by which we have arrived at this perversion of both justice and common sense, Graham has performed a signal intellectual service.