Dr. Yates is Adjunct Research Fellow with the Acton Institute for the Study of Religion and Liberty and the author of Civil Wrongs: What Went Wrong With Affirmative Action (ICS Press, 1994).
This book is a tour de force. Terry Eastland looks at the history of civil rights in America and sees two incompatible visions of what a civil rights movement should accomplish. One favors colorblindness and race-neutrality; the other, color-consciousness and group-based preferences. The first might eventually enable us to solve our racial problems. The second has kept them inflamed now for over a quarter century.
Yet colorblind policy can only remove barriers; it cannot guarantee specific, quantifiable results. So to those who wanted such results, colorblindness was not enough, and the struggle for a colorblind legal system was quickly reversed in favor of color-consciousness which soon spread to include other groups. This meant continuing the practice of differential treatment, i.e., discrimination. The entire focus of affirmative action changed from efforts to remedy discrimination to quite different ones aimed at managing diversity, i.e., hiring and promoting by group-identity, and ultimately, engineering a new social order. Multiculturalism, radical feminism, and other identity-ideologies have kept attention focused on the differences between groups, contrary to the intent of the prime movers of the civil rights movement.
Eastland deftly guides us through these changes, focusing on misguided decisions by both the executive and judicial branches of government. The first major turning point was the shift in emphasis from disparate treatment to a disparate impact. The disparate impact doctrine broadened the definition of discrimination to include not merely intentional actions against individuals but any hiring and contracting practices that resulted in politically unacceptable ratios. Quotas had actually been adopted as part of Richard Nixon’s Philadelphia Plan. Soon thereafter, whites—especially white men—began to experience reverse discrimination.
The second juncture occurred in the late 1970s when the Supreme Court missed the opportunity to repudiate reverse discrimination and informal quotas. Rather than questioning whether government should be classifying people by race, it sought to define the circumstances when such classifications were warranted and did so very ambiguously. The net result was that preferences soon got out of control, particularly in the universities and in government.
In the late 1980s, we reached another turning point. Set-asides had become the norm in construction, and cultural diversity was becoming the official ideology of increasingly thought-controlled colleges and universities. The Johnson v. Transportation Agency decision in 1987 had allowed preferences to overcome underrepresentation without any necessary tie to past or present discrimination.
New cases started making their way to a somewhat different Supreme Court with Reagan appointees who tended to oppose racial engineering. By letting a lower court’s 1989 decision stand in J. R. Croson Co. v. City of Richmond, and in Wards Cove v. Atonio that same year, the Court made efforts to rein in set-asides. Yet their defenders proved too strong, as these decisions were overturned by the so-called 1991 Civil Rights Act, which held onto the disparate impact doctrine. Hopwood v. University of Texas School of Law was another case which let a lower court’s decision stand, but threw the legal status of affirmative action programs in higher education into doubt without resolving the issue. Adarand Construction v. Peña called for an application of strict scrutiny to racial classifications. This was a step in the right direction, if not the outright repudiation that was really needed. These cases have brought us nearer to what—dare we hope?—is the beginning of the repudiation of preferential treatment.
There are important lessons to be learned from the legal trajectory of affirmative action. First and most obviously, government classification by group identity for any purpose is inviting trouble, since it provides a basis for legally acceptable discrimination. Another is that temporary measures translate into permanent entitlements. A third is familiar: social engineering is not possible, since most people resent top-down manipulations and will thwart them if they can. Terry Eastland’s wide-ranging account includes more than I have been able to consider here, such as the relationship between affirmative action and immigration and the question of whether recent immigrants who cannot have suffered discrimination in America ought to be eligible for affirmative action as members of underrepresented groups.
The themes of this book are not new; what is newest here are up-to-date accounts of cases such as Hopwood and Adarand, and of actions such as the California Civil Rights Initiative. It is a commentary on our times that the same message needs to be sent out again and again.