Terry Eastland
Ending Affirmative Action: The Case for Colorblind Justice
Basic Books, 1996
239 pages, $23.00 hb.
Reviewed by Gary McGath
This review Copyright 2000 by Gary McGath

For most of its history, the United States government has promoted the repulsive policy that people should be treated differently depending on their racial and ethnic membership, and that people who belong to the "right" groups should receive preferential treatment in jobs, education, and government contracts. In the 1950's and 1960's, this view briefly gave way to the idea that the government should be colorblind. But then the old policies of racial discrimination came back, with new beneficiaries and a new name: affirmative action. Today we are seeing a slow swing away from those policies, and perhaps toward the eventual end of all race-based governmental policies. But the end is coming slowly.

Terry Eastland's Ending Affirmative Action may help to push the debate toward the book's eponymous goal. He demolishes the arguments for affirmative action in a calm, effective style.

Eastland traces the beginnings of affirmative action to the Johnson administration, and in particular to Johnson's speech calling for "not just equality as a right ... but equality as a result." The first steps were the EEOC's use of statistics as evidence of violation of Title VII of the Civil Rights Act, and the creation of the Office of Federal Contract Compliance (OFCC) to make proportional minority group representation a condition of getting certain federal contracts.

This was done, at least ostensibly, for the purpose of remedying past discrimination. But the poison spread over time, with evidence of past discrimination quickly ceasing to be a requirement, Title VII being "broadly interpreted" into the exact opposite of its written anti-discrimination meaning, and other excuses such as "diversity" filling in the gap where claims of discrimination were no longer plausible.

He cites a large number of outrages against justice. The University of California reserved sixteen places for admissions to the Davis Medical School for applicants who met racial and ethnic criteria -- and the Supreme Court upheld this act of blatant racism. The University of Texas Law School formed a separate subcommittee for processing black and Mexican-American applicants; in this case the plaintiffs won, but were given a single dollar in damages plus the right to reapply. (It's as if the court had said, "Ms. Parks, you are granted the right to ask again if you can ride in the white-only streetcar -- oh, and here's a token to get on.") The FCC gives tax breaks to the purchase of broadcast stations, provided the owners meet racial criteria. The Supreme Court ruled that there is a difference between "benign" and "invidious" racial discrimination, and that discriminating against people on account of their race is all right as long as the government "means no harm." A New Jersey high school, having to make a layoff, chose a white teacher on the basis of her race rather than making a random selection; Bill Clinton reassures us that under other circumstances, a school could "keep the white teacher also to preserve diversity." Thus, affirmative action brings us back full circle to Jim Crow, as the President tells us it can be all right to lay off a black teacher for being black.

Most arguments for affirmative action fall into two categories: remedying past discrimination, and promoting diversity. On the first of these, Eastland notes that requirements for affirmative action are seldom tied to past acts of discrimination by the people required to make amends. Making reference to Lyndon Johnson's "shackled runner" analogy, Eastland states that the doctrines which the EEOC developed in the 1960's "made employers responsible for all that had happened to the shackled runners before they got to the starting line -- even before they were born." Some beneficiaries of affirmative action are wealthy (particularly those who benefit from contract set-asides for minority-owned businesses), and some simply haven't interacted positively or negatively with the American economic mainstream (Eskimos, Aleuts, and recent immigrants). People who are under 40 have lived most of their working lives under laws which (at least ostensibly) prohibit racial discrimination in hiring. And hardly ever are racial "guidelines" tied to evidence for past discrimination by the business on which they are imposed.

The diversity argument is often used for academic affirmative action. "Diversity," Eastland notes, is just a weasel-word to serve whatever policies the government wants to implement. In the name of "diversity," schools have actually admitted fewer Asian-Americans than they otherwise would have. As he dryly notes about one case, "No other 'diversity' factor counted for as much as race did." True diversity would entail recruiting scholars who represented unusual points of view, regardless of their ancestry or skin color. But precisely because they express unorthodox opinions, such people don't have much political clout.

A more plausible basis for affirmative action is the "operational needs" argument. A frequently cited example is a police force which has to interact with the community; if hostilities and suspicions exist between members of different ethnic groups, then officers who belong to the same ethnic group as neighborhood residents can function more effectively. Eastland points out the danger in this argument: it can be used as a cover for bigotry. If it's legitimate to prefer black police officers to work around racial hostilities in black neighborhoods, it's hard to argue against preferring white officers for white neighborhoods -- especially if disdain for non-whites is as prevalent in these neighborhoods as advocates of affirmative action claim it is. I'm not convinced that the operational needs argument is never valid, but it certainly must be approached with great care, and as a clear exception to normal practice.

Racial preferences, Eastland observes, stigmatize their beneficiaries. If a black person in modern America is admitted to a top school or gets a good job on his own merits, he has to overcome the impression that he succeeded only because of racial preferences. Such policies also help the agendas of both traditional bigots and minority demagogues, by allowing them to claim "that affirmative action explains minority success."

But the real reason for affirmative action isn't remedying past discrimination or achieving diversity; it's simply the same old special-interest game in which people claim not only that they're entitled to special favors from the government, but that anyone who would cut off the flow of favors is evil. Eastland mentions a smear by Charles Rangel "comparing the attitudes of House Republicans to Adolf Hitler's." The tactic has become common; if someone opposes racist government policies, assert that the opponent, not the supporter of the policies, is somehow the real racist. Somehow the people who use this tactic aren't laughed out of the debate.

The one unfortunate aspect of the book is its argument that immigrants should not be eligible for affirmative action. The author does offer a rationale for this: that recent immigrants were not targets of racial discrimination or abuse in the United States, and thus there is nothing to compensate them for. But there is no sense in patching up a policy which is based on fundamentally corrupt premises. Attaching specialized fixes to a bad law only increases its injustices while giving special-interest advocates more opportunities to manipulate the law against one another; consider the income tax code as an example. We don't need to give Pat Buchanan a stake in affirmative action.

Will affirmative action end soon? Probably no sooner than any other governmental special-interest program. But this book at least helps to show that it has no moral legitimacy.

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