On June 11, 1963, in the wake of Governor George Wallace’s stand against integration at the University of Alabama, President John F. Kennedy reported to the American people on the state of civil rights in the nation. He called on Congress to pass legislation dismantling the system of segregation and encouraged lawmakers to make a commitment "to the proposition that race has no place in American life or law."
Invoking the equality of all Americans before the law, Kennedy said: "We are confronted primarily with a moral issue. It is as old as the Scriptures and it is as clear as the American Constitution. The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated."
The American people are now beginning a great debate over the use of race and gender preferences by federal, state, and local governments. In 1996, a majority of voters in California, including 29 percent of blacks, approved the California Civil Rights Initiative prohibiting preferential treatment in public employment, education, and contracting. In a series of cases, the Supreme Court and federal courts of appeal have made it clear that the system of preference is built on an exceedingly shaky foundation. These cases--chiefly the Adarand decision of 1995--establish that racial classifications are presumptively unconstitutional and will be permitted only in extraordinary circumstances. In 1998, Congress is likely to consider legislation to end the use of race and gender preferences by the federal government.
As we enter this debate, Kennedy’s stirring words on civil rights are as important as they were in 1963. In the name of overcoming discrimination, our government for the past generation has been treating Americans of different races unequally. This is not the first time that American governments have intentionally discriminated. The institution of slavery and Jim Crow laws both violated the fundamental American tenet that "all men are created equal" and are "endowed by their Creator with certain unalienable rights." But racial preferences designed to compensate for prior discrimination are also inconsistent with our most deeply cherished principles.
Slavery was the single greatest injustice in American history. The conflict sparked by its existence and by efforts to expand it took 365,000 American lives. A system of ferocious violence that degraded human beings to the status of chattel, American slavery had at its core the belief that blacks were subhuman. It was an institution that systematically and wantonly trampled on the most basic of human relations: Husband was separated from wife, parent was separated from child. Liberty was denied to individuals solely by reason of race.
When this disgraceful chapter in our history came to an end, it left a legacy of racism that has afflicted America up to the present generation. Soon after the Civil War, that legacy found expression in the segregation statutes, also known as Jim Crow laws. Historian C. Vann Woodward describes segregation thus: "That code lent the sanction of law to a social ostracism that extended to churches and schools, to housing and jobs, to eating and drinking. Whether by law or by custom, that ostracism extended to virtually all forms of public transportation, to sports and recreations, to hospitals, orphanages, prisons, and asylums, and ultimately to funeral homes, morgues, and cemeteries."
Woodward continues, "The Jim Crow laws, unlike feudal laws, did not assign the subordinated group a fixed status in society. They were constantly pushing the Negro farther down." Woodward also documents the "total disfranchisement" of black voters in the South through the poll tax and the white primary. He quotes Edgar Gardner Murphy on the attitude of many southern whites that energized the system of segregation during the first half of the 20th century: "Its spirit is that of an all-absorbing autocracy of race, an animus of aggrandizement which makes, in the imagination of the white man, an absolute identification of the stronger race with the being of the state."
A Question of Dignity
The civil-rights movement of the 1950s and the early 1960s arose to combat racist laws, racist institutions, and racist practices wherever they existed. The story of that movement is a glorious chapter in the history of America. Sparked by the Supreme Court’s decision in Brown v. Board of Education (1954), the civil rights movement dealt a death blow to the system of segregation with the passage of the Civil Rights Act of 1964. The Voting Rights Act of 1965 soon followed, creating the basis for fully restoring the franchise to black Americans throughout the country.
The moral example of those who stood against the forces of racial injustice played a critical role in reshaping American attitudes toward race. The American people were moved by images of the terrible acts of violence and gross indignities visited on black Americans.
Moreover, the civil-rights movement embodied a fundamental message that touched the soul of the American people. It exemplified an ideal at the core of the American experience from the very beginning of our national life, an ideal that was never fully realized and sometimes tragically perverted, but always acknowledged by Americans.
The ideal of respect for the dignity of the individual was set forth in the Declaration of Independence: "[A]ll men are created equal" and are "endowed by their Creator with certain unalienable rights." At Independence Hall on the eve of the Civil War, Lincoln spoke of this ideal as "a great principle or idea" in the Declaration of Independence "which gave promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance." This ideal undergirded the civil-rights movement and condemned the contradictions of America’s segregated society.
This ideal has never been more eloquently expressed than by Martin Luther King Jr., who said, the "image of God . . . is universally shared in equal portions by all men. There is no graded scale of essential worth. Every human being has etched in his personality the indelible stamp of the Creator. . . . The worth of an individual does not lie in the measure of his intellect, his racial origin, or his social position. Human worth lies in relatedness to God. Whenever this is recognized, ‘whiteness’ and ‘blackness’ pass away as determinants in a relationship and ‘son’ and ‘brother’ are substituted."
King explicitly linked this religious view of man to the philosophical foundation of the United States. America’s "pillars," King said, "were soundly grounded in the insights of our Judeo-Christian heritage: All men are made in the image of God; all men are brothers; all men are created equal; every man is heir to a legacy of dignity and worth; every man has rights that are neither conferred by nor derived from the state, they are God-given. What a marvelous foundation for any home! What a glorious place to inhabit!"
In light of King’s personal experiences and the contradiction of sanctioning slavery and segregation in a country committed to equality, this is a remarkably optimistic view of the American experience. It is a view that propelled the civil-rights movement to great victories.
An Animating Principle
This understanding of the dignity of the individual found concrete expression in a legal principle that was relentlessly pursued by the early civil-rights movement. If universally adopted, this principle would fulfill the promise of American ideals. It was eloquently stated by the first Justice Harlan in his dissent to the Supreme Court’s decision in Plessy v. Ferguson (1896). In words that would often be cited by those seeking to overthrow the odious Jim Crow system, Harlan pronounced, "Our Constitution is color blind. . . . The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the Supreme law of the land are involved."
The colorblind principle articulated by Harlan was the touchstone of the American civil-rights movement until the mid-1960s. Emory law professor Andrew Kull, in his admirable history The Color-Blind Constitution, identifies the centrality of the colorblind principle to the movement: "The undeniable fact is that over a period of some 125 years ending only in the late 1960s, the American civil-rights movement first elaborated, then held as its unvarying political objective, a rule of law requiring the color-blind treatment of individuals."
This fact is well illustrated by the example of Thurgood Marshall. In 1947, Marshall, representing the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund, in a brief for a black student denied admission to the University of Oklahoma’s segregated law school, stated the colorblind principle unequivocally: "Classifications and distinctions based on race or color have no moral or legal validity in our society. They are contrary to our constitution and laws."
Marshall’s support for the colorblind principle--which he later abandoned--is vividly described by Constance Baker Motley, senior U.S. district judge for the Southern District of New York, in an account included in Tinsley Yarbrough’s biography of Justice Harlan. Motley recalled her days working with Marshall at the NAACP: "Marshall had a ‘Bible’ to which he turned during his most depressed moments. . . . Marshall would read aloud passages from Harlan’s amazing dissent. I do not believe we ever filed a major brief in the pre-Brown days in which a portion of that opinion was not quoted. Marshall’s favorite quotation was, ‘Our Constitution is color-blind.’ It became our basic creed."
The principle of colorblind justice ultimately did find clear expression in the law of the United States. By passing the Civil Rights Act of 1964, Congress acted decisively against the Jim Crow system, and established a national policy against discrimination based on race and sex. It is the supreme irony of the modern civil-rights movement that this crowning achievement was soon followed by the creation of a system of preferences based first on race and then extended to gender.
The Civil Rights Act of 1964 was an unequivocal statement that Americans should be treated as individuals and not as members of racial and gender groups. Congress rejected the racism of America’s past. Under the Civil Rights Act of 1964, no American would be subject to discrimination. And there was no question about what discrimination meant. Senator Hubert Humphrey of Minnesota--the chief Senate sponsor of the legislation--stated it as clearly as possible: Discrimination was any "distinction in treatment given to different individuals because of their different race."
Was This Enough?
As the Civil Rights Act was being considered, some voices questioned the adequacy of the principle of colorblind justice. The Urban League’s Whitney Young said that "300 years of deprivation" called for "a decade of discrimination in favor of Negro youth." James Farmer, a founder of the Congress of Racial Equality, called for "compensatory preferential treatment." Farmer said "it was impossible" for an "employer to be oblivious to color because we had all grown up in a racist society." But Roy Wilkins of the NAACP, in an encounter with Farmer, summed up the traditional view of the civil-rights movement: "I have a problem with that whole concept. What you’re asking for there is not equal treatment, but special treatment to make up for the unequal treatment of the past. I think that’s outside the American tradition and the country won’t buy it. I don’t feel at all comfortable asking for any special treatment; I just want to be treated like everyone else."
While considering the Civil Rights Act of 1964, Congress itself debated the issues of racial preferences and proportional representation. The result of that debate was the adoption of Section 703(j) of the Act, which states that nothing in Title VII of the Act "shall be interpreted to require any employer . . . to grant preferential treatment to any individual or group because of the race . . . of such individual or group" in order to maintain a racial balance. Senators Joseph Clark of Pennsylvania and Clifford Case of New Jersey, who steered that section of Title VII through the legislative process, left no doubt about Congress’s intent. "[A]ny deliberate attempt to maintain a racial balance," they said at the time, "whatever such a balance may be, would involve a violation of Title VII because maintaining such a balance would require an employer to hire or refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited to any individual."
For a brief, shining moment, the principle of colorblind justice was recognized as the law of the land. But soon that principle was thrust aside to make way for a system of race-based entitlement. The critical events took place during the Nixon administration, when the so-called Philadelphia Plan was adopted. It became the prototypical program of racial preferences for federal contractors.
In February 1970, the U.S. Department of Labor issued an order that the affirmative-action programs adopted by all government contractors must include "goals and timetables to which the contractor’s good faith efforts must be directed to correct . . . deficiencies" in the "utilization of minority groups." This construct of goals and timetables to ensure the proper utilization of minority groups clearly envisioned a system of proportional representation in which group identity would be a factor--often the decisive factor--in hiring decisions. Embodied in this bureaucratic verbiage was a policy requiring that distinctions in treatment be made on the basis of race.
Discrimination of a most flagrant kind is now practiced at the federal, state, and local levels. A white teacher in Piscataway, New Jersey, is fired solely on account of her race. Asian students are denied admission to state universities to make room for students of other races with much weaker records. There are more than 160 federal laws, regulations, and executive orders explicitly requiring race- and sex-based preferences.
Now, as throughout the history of preferences, the key issue in the debate is how policies of preference can be reconciled with the fundamental American tenet that "all men are created equal" and are "endowed by their Creator with certain unalienable rights."
Evidence of racism can still be found in our country. American society is not yet colorblind. The issue for Americans today is how we can best transcend the divisions of the past. Is it through a policy of consistent nondiscrimination or through a system of preferences?
Racial preferences are frequently justified as a measure to help low-income blacks. But the evidence is compelling that the beneficiaries of preferential policies are overwhelmingly middle-class or wealthy. For the most part, the truly disadvantaged have been unable to participate in the programs that grant preferences. Furthermore, the emphasis on preferences has diverted attention from the task of addressing the root causes of black Americans’ disadvantage. The lagging educational achievement of disadvantaged blacks can be ameliorated not through preferences but through structural reform of the American elementary and secondary education system. Preferences do nothing to help develop the skills necessary for the economic and social advancement of the disadvantaged.
Preferences must also be judged a moral failure. Although some individuals have benefited significantly from preferences and a case can be made that preferences have enhanced the economic position of the black middle class, these gains have come at a great moral cost. Put simply, preferences discriminate. They deny opportunities to individuals solely because they are members of a nonpreferred race, gender, or ethnic group. The ambitions and aspirations, the hopes and dreams of individual Americans for themselves and for their families are trampled underfoot not for any wrongs those individuals have committed but for the sake of a bureaucratic effort to counterbalance the supposedly pervasive racism of American society. The penalty for the sins of the society at large is imposed on individuals who themselves are guilty only of being born a member of a nonpreferred group. Individual American citizens who would otherwise enjoy jobs and other opportunities are told that they must be denied in order to tilt the scales of racial justice.
Although preferences are presented as a remedial measure, they in fact create a class of innocent victims of government-imposed discrimination. In our system of justice, the burden of a remedy is imposed on those responsible for the specific harm being remedied. In the case of racial preferences, however, this remedial model breaks down. Those who benefit from the remedy need not show that they have in fact suffered any harm, and those who bear the burden of the remedy do so not because of any conduct on their part but purely because of their identity as members of non-preferred groups. Americans of all descriptions are deprived of opportunities under the system of preferences. And some of these victims have themselves struggled to overcome a severely disadvantaged background.
The proponents of preferential policies must acknowledge the injuries done to innocent individuals. They must confront the consequences flowing daily from the system of preferences in awarding contracts, jobs, promotions, and other opportunities. Supporters of the status quo attempt to hide the reality of preferences beneath a facade of "plus factors," "goals and timetables," and other measures that are said merely to "open up access" to opportunities. Behind all these semantic games, individual Americans are denied opportunities by government simply because they are of the wrong color or sex. The names assigned to the policies that deprive them of opportunity are of little moment. What matters is that our government implements a wide range of programs with the purpose of granting favored treatment to some on the basis of their biological characteristics. How can such government-imposed distinctions be reconciled with Martin Luther King’s message that whenever the image of God is recognized as universally present in mankind, " ‘whiteness’ and ‘blackness’ pass away as determinants in a relationship"? The conflict is irreconcilable.
The moral failure of preferences extends beyond the injustice done to individuals who are denied opportunities because they belong to the wrong group. There are other victims of the system of preferences. The supposed beneficiaries are themselves victims.
Preferences attack the dignity of the preferred, and cast a pall of doubt over their competence and worth. Preferences send a message that those in the favored groups are deemed incapable of meeting the standards that others are required to meet. Simply because they are members of a preferred group, individuals are often deprived of the recognition and respect they have earned. The achievements gained through talent and hard work are attributed instead to the operation of the system of preferences. The abilities of the preferred are called into question not only in the eyes of society, but also in the eyes of the preferred themselves. Self-confidence erodes, standards drop, incentives to perform diminish, and pernicious stereotypes are reinforced.
All of this results from treating individuals differently on the basis of race. It is the inevitable consequence of reducing individuals to the status of racial entities. The lesson of our history as Americans is that racial distinctions are inherently cruel. There are no benign distinctions of race. Our history--and perhaps human nature itself--renders that impossible. Although the underlying purpose of preferences was to eliminate the vestiges of racism, the mechanism of redress was fundamentally flawed. Rather than breaking down racial barriers, preferential policies continually remind Americans of racial differences.
Scarring the Soul
Martin Luther King Jr. described the harm done to all Americans by the Jim Crow system: "Segregation scars the soul of both the segregator and the segregated." Similarly, every time our government prefers one individual over another on the basis of race, new scars are created, and the promise of the Declaration of Independence is deferred.
The way forward in American race relations is to embrace the vision of a colorblind legal order that was set forth 100 years ago by Justice Harlan, pursued devotedly by the civil-rights movement, articulated eloquently by President Kennedy, and enshrined in the Civil Rights Act of 1964. The way to transcend our racial divisions is to first ensure that we, as a people acting through our government, respect every person as an individual created in the image of God and honor every American as an individual whose color will never be the basis for determining his opportunities.
This principle is consistent with the initial meaning of "affirmative action" in civil-rights law. On March 6, 1961, President Kennedy issued Executive Order 10925, establishing the President’s Committee on Equal Employment Opportunity, and creating a framework for "affirmative steps" designed "to realize more fully the national policy of nondiscrimination within the executive branch of the Government." The executive order also provided that government contracts contain the following provision: "The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin."
The original concept of affirmative action excluded any notion of preference. Indeed, the concept of affirmative action was explicitly linked with the principle of nondiscrimination. It was to be affirmative action to ensure that individuals were treated "without regard to their race." There is no hint of group entitlement or proportional representation in the executive order. On the contrary, the exclusive focus is on the right of individuals to be treated as individuals. The "affirmative steps" were actions designed to ensure that individuals of all races would have an opportunity to compete on the basis of their individual merit.
William Van Alstyne, a law professor at Duke University, has stated it as well as anyone: "[O]ne gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one’s own life--or in the life or practices of one’s government--the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: In all we do in life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding."
The American people have embraced that commitment, and the courts have gone far toward making it our fundamental law. The only remaining question is whether the elected representatives of the people will do their part to rid our legal order of the odious distinctions of race.