To the Editor:
I wish to thank Carl Cohen for his splendid article, “Naked Racial Preference” [March]. I was especially interested in his discussion of “role models” in the Wygant case, since here in Minnesota the state community-college system has as signed itself the task of selecting “positive role models” for its preferred employees. . . .
I am a Vietnam veteran. I have worked for the Minnesota community-college system since 1969. As far as I am able to determine, affirmative action played no role in the state’s decision to hire me. Since 1969, however, things have changed considerably in Minnesota where affirmative action is concerned, and unfortunately, not all the changes have been for the better.
In 1985, the community-college system, in response to a legislative statute, adopted a document en titled “The Strategic Plan of the Minnesota Community College Sys tem.” Among the plan’s declared goals are the following: “Increase the representation of women, minorities, handicapped, and Viet nam-era veterans within the ranks of the system’s staff, especially among administrators and faculty” and make “a concerted effort to recruit, retain, and promote women, minorities, handicapped, and Vietnam-era veterans. . . .”
As stated in the plan, the community-college system also intends to provide “positive role models” for its women, minority, handi capped, and Vietnam-veteran employees as well as “mentoring opportunities for members of these groups. . . .” Aside from the fact that mentor is not a verb, the plan does not explain the meaning of “men toring opportunities.” Presumably the state, in addition to selecting role models, intends to act as wise counsel to its preferred employees. . . . The state allows itself the next decade to accomplish these goals.
Given these aims, one can logic ally conclude that women, minorities, the handicapped, and Vietnam veterans may not serve as role models for one another or for other employees. They may only receive role-model examples as selected for them by the state of Minnesota. Imagine a black woman with a Ph.D. in mathematics from the University of Minnesota. If this woman worked for one of our community colleges, the state would now be obligated to provide her with role models and thereafter arrange mentoring opportunities to provide additional wise counsel! Is this the sort of thing affirmative action was intended to do? Should affirmative-action policy rest upon personal insult and degrading as sumptions?. . . .
And what will the state do to preferred employees who are inclined to reject state-sponsored models or other wise counsel? Will there be individual mentoring-re view boards? Evaluation reports? A “reeducation” summer camp for the stubborn? Since there were about 2,500 community-college employees in Minnesota in 1983-84, nearly half of them women, how many people will have to be hired or reassigned to guide role-model decisions and to carry out mentoring assignments? How much will this activity cost Minnesota tax payers? . . .
I do not speak for women, minorities, or the handicapped. Nor do I speak for other veterans. Many of these people may disagree with me. I speak only for myself and I speak, it is worth remembering, as one who is supposed to receive the benefits of preferential treatment. In so doing, I ask the community-college chancellor, the State Board for Community Colleges, and all bureaucrats high enough on the ladder to have participated in this intrusive process: on what moral grounds do you propose to select my role models and serve as my mentor? What did you think you were doing when you rashly decided to undertake these tasks? On what moral grounds do you stride into my life to decide to your satisfaction whom I should emulate and whom I should not? You may hire or fire me. You may criticize or approve my classroom work. You may hold me to the terms of our employment contract. You may not, however, assume responsibility for private decisions that are properly my own. . . .
In degrading affirmative action, Minnesota, I am certain, did not intend to hurt anyone. Yet it did hurt all the same. We may debate the pros and cons of affirmative action, but we may not debate this crucial point. When affirmative-action policy reinforces the perception of Vietnam veterans and others as somehow inferior . . ., as people who cannot quite measure up or make it on their own, as employees who are not really qualified for the jobs preferential treatment pro vides, then harm has been done and stereotypes have been reinforced.
To his credit, the chancellor of community colleges in Minnesota has agreed with my protests and has twice assured me that some corrective actions are called for. I might add that corrected attitudes on the part of some state officials are called for as well. As of today, however, “The Strategic Plan” re mains in force in Minnesota. . . .
James J. Daly
Fergus Falls Community College
Fergus Falls, Minnesota
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To the Editor:
Carl Cohen’s “Naked Racial Preference” is a thoughtful as well as thought-provoking analysis of the use of racial criteria to determine . . . minority representation on a school faculty as demanded by affirmative action. He reveals many of the pitfalls and injustices inherent in that enterprise. Yet there is more to it than simply “naked racial preference.”
Mr. Cohen takes insufficient ac count of the larger, more overtly political purpose of affirmative action, which aims to do more than “make whole,” in the words of the Supreme Court, the groups victimized by discrimination. Rather, affirmative action is reformist. In deed, it has to be, for unless it brings about a “homogenized society,” as Mr. Cohen rightly calls it, discrimination will continue and victims will continue to be made. . . . Affirmative action aims at bringing us closer to the homogenized society. . . . For the advocates of naked racial preference, quotas, timetables, goals, and so forth are all weapons in the war. If this means proportional distribution of teachers on the basis of the racial composition of the student body, then so be it. As Justice Blackmun said in Regents v. Bakke (1978),
“In order to get beyond racism, we must take account of race.” In this reformist view, affirmative action operates on the premise, rarely . . . articulated, that if various elements of the homogenized society can be introduced into . . . our present, tainted society, . . . in time—who knows when?—the entire society will itself become pure.
Mr. Cohen neglects to explain the connection between naked racial preference and this higher goal in the minds of the advocates of affirmative action. . . . Rather, he contents himself with warning us that the use of statistical analyses in defense of naked racial preference by government agencies, e.g., the Jackson School District, raises the specter of every racial, ethnic, and other identifiable group having, and presumably also claiming, a legitimate right to proportional representation. I share his concern, but the Supreme Court has dismissed such claims. In UJO v. Carey (1977), for example, Justice White, supported by Justices Stevens and Rehnquist, defended the effective elimination of representation for hasidic Jews in Brooklyn on the grounds that “as long as whites [in Brooklyn] as a group were provided fair representation,” preference for blacks did not constitute discrimination against whites. . . . The possibility that Mr. Cohen does not seem to consider is that many affirmative-action advocates see the world in only two categories: white and (multiple) minority.
Mr. Cohen further explains that attempts to base remedial measures on “underrepresentation” are “not merely unrealistic, but unwholesome.” But he misses, I believe, the most dangerous possibility inherent in statistical measures. If proportional distribution is the goal, as would seem to be the case, then what is to be done if one group is found to be “overrepresented” in a profession, as, for example, Jews in academia? Is the group to be reduced so that its share is proportional? Isn’t that the ultimate conclusion toward which proportional distribution points us? Must not the top be lowered in the same way the bottom is raised? That would constitute true equality, albeit at its worst.
Stephen M. Baron
DeWitt, New York
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To the Editor:
In “Naked Racial Preference” Carl Cohen says that the Jackson affirmative-action plan is unconstitutional. According to the Supreme Court, he is probably correct. But he is incorrect according to the Constitution, the Fourteenth Amendment to which states, in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . nor deny to any person within its jurisdiction the equal protection of the laws.”
When the Amendment was de bated and ratified the phrase “privileges or immunities” had a received meaning. That meaning originated implicitly with the Founding Fathers; it was stated clearly in Corfield v. Coryell (1823), refined in Abbott v. Bayley (1827), and was repeated many times in the debates of the 39th Congress. In the words of the Corfield decision, the phrase referred to those rights “which are, in their nature, fundamental. . . . Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property . . . to pass through, or reside in any other state . . . to claim the benefit of the writ of habeas corpus; to institute . . . actions of any kind in the courts. . . .” This was generally in line with the narrow legal meaning of life, liberty, and property (or “absolute” rights) found in the commentaries of Blackstone and Kent. “Protection” and “liberty” were under stood in the most basic sense of “personal security” and “the power of locomotion . . . without imprisonment . . . unless by due course of law . . .”
And then there is the 1866 Civil Rights Bill, which, as Thaddeus Stevens said, it was the purpose of the Amendment to “constitutionalize.” The Bill referred to the right, regardless of race, “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property. . . .” Other rights—e.g., voting and desegregation—were deliberately omitted from the Bill and the Amendment, as a study of the congressional de bates makes clear.
In other words, specified fundamental rights—e.g., the right to make a contract—were given added constitutional protection. And the state had to afford equal protection in dealing with those rights, e.g., it had to be color-blind. So if we are to respect the Constitution, rather than the usurpations of the Court or the outrage of Mr. Cohen and myself, then we should ask: as a result of the Jackson plan, is it legally easier for black public-school teachers to enter into and en force employment contracts? The answer is no. The layoff provisions in the contract are discriminatory, but the right to contract remains equal. And that is the right protected by the Amendment, not the right to have color-blind layoff procedures. This makes the Jackson plan unfair, counterproductive, and stupid—but not unconstitutional.
Jack Noble
Los Angeles, California
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Carl Cohen writes:
Naked racial preference, as practiced by the Jackson School Board in Wygant, is found intolerable by all three of my correspondents. James J. Daly—on the basis of personal experience—concludes that such preference is offensive and de meaning. Stephen M. Baron concludes that such preference is un just and dangerous. Jack Noble concludes that such preference is counterproductive and stupid. They are all quite right in these judgments, and I thank them for their thoughtful comments.
Mr. Daly is insulted by the condescension of state-authorized preference givers; they will provide him with a mentor, and appoint role models to guide him. His fury is not hard to understand.
Those who presume to serve the interests of minority groups by ex tending special favor to them in employment, or university admissions, would do well to reread his letter, pondering the consequences of preference upon the spirit and status of those preferred. The in jury done to persons unfairly disfavored by preferential programs is readily seen. Mr. Daly helps us to see the injury done, in ways uncountable, to those unfairly favored.
Members of minority groups, blacks above all, whose abilities and efforts have resulted in professional attainments of the finest kind are cruelly undermined by racially-preferential programs. What purports to be helpful to minorities is, in the eyes of the most accomplished, ignominious and hateful.
Members of minority groups given special favor are not normally in a position to say this openly. The reason for this is worth thinking about. One who did receive, or is believed to have received, special preference be cause of his race must believe either that he needed that preference to be in his present position, or did not need it. If he believes that he did need it, complaint by him about racial preference would suggest that he has been hypocritical in accepting that advantage. If he believes that he did not need it, complaint by him about racial preference would invite the retort that he is selfishly and disloyally upbraiding those in his own ethnic group who would not be where they are but for the racial favoritism given to them. The prudent and understandable course for members of groups receiving preference, therefore (whether or not, as individuals, they needed it), is to refrain from calling attention to the fact of it.
Mr. Daly has been subjected to the ignominy of being treated as though he did need role models and a mentor chosen for him. His letter is a courageous public statement of his resentment and intellectual pride. Many of those in similar circumstances who might wish they were free to write in that same spirit will thank him silently.
Mr. Baron faults me, gently, for taking insufficient account of the larger political purposes of racially-preferential schemes, and neglecting to explain the connections between such programs and their reformist objectives. I share his concern and sought to express it by condemning as unwholesome the goal of social homogeneity that underlies the principle of ethnic proportionality.
Rightly, Mr. Baron is also anxious to emphasize the number and variety of ethnic groups, and the gravity of the error of viewing the world as though consisting simply of whites and non-whites. Because ethnic groups are delineated on different dimensions (race, religion, nationality, etc.), and be cause groups marked off by gender, by handicap, or by other characteristics inevitably enter the fray, the many elements of the social fabric must overlap and tangle. Therefore, every effort to distribute social goods proportionally, by group, is doomed to internal in coherence. The squabbles thus en gendered must yield never-ending ethnic resentment and animosity.
Racial preference based upon alleged “underrepresentation,” Mr. Baron further observes, has the dangerous consequence of necessarily injuring some members of groups which, by whatever measures chosen, are in some spheres ldquo;overrepresented”—Jews in the academic world being a good example. He is dead right. This important point (for a more extended treatment of it, see my article, “Why Racial Preference Is Illegal and Immoral,” COMMENTARY, June 1979) deserves reemphasis: what is given to some simply on the basis of their ethnic identification must be taken from others simply on the basis of their ethnic identification. Preference by race, without regard to past injury or desert, cannot be benign.
If Mr. Baron and I have some differences they are of little moment. By underscoring the injustice and the danger of racial preference he serves us well, and I join him in that.
Mr. Noble, understandably out raged by naked racial preference, nevertheless believes that, in view of the historical protection given in our legal system to the right of contract, the racial preference in the contract between the Jackson School Board and the Jackson teachers is regrettably constitutional. I share the judgment of the American Federation of Teachers that this conclusion is mistaken. There are, as there ought to be, powerful protections for contractual agreements between unions and employers, even when third parties do not find the contents of those agreements wise or fair. But when, as in this case, an employment contract imposes indubitable constitutional injury upon innocent parties (Wygant and her fellow teachers) by causing their loss of employment for no other reason than that theirs was the wrong skin color, that contract ought not stand immune. Con tracts between unions and employers must not—and, I submit, constitutionally may not—waive or bypass the right of each employee, as an individual, not to be burdened by an employer’s decisions based flatly upon race.
Just as I had finished writing my response, the U.S. Supreme Court handed down a decision in the case of Wygant v. Jackson Board of Education. It held that racially-preferential protections against layoffs violate the equal-protection clause of the Constitution and are not permissible.