Gap Flap Flack

I argued immediately below (and other places here over a good while) that every racial “gap,” i.e., “underrepresentation” of minorities, is not the result of a problem that needs solving. Interests, abilities, availability for various tasks are neither evenly nor randomly distributed throughout society, and in my view racial and ethnic “disparities” that are not produced by discrimination do not call for corrective action.

Most modern liberals disagree, believing as they now do that fairness requires something approaching proportional representation of all racial and ethnic (but, curiously, so far not religious) groups. To them, every “disparity” results from discrimination — if not current or even recent discrimination, then past discrimination — and demands corrective action, typically in the form of racial preferences in hiring, admissions, etc., until the “proper” racial proportions, i.e., the racial mix that would have existed if there had been no discrimination since Eve ate the apple, are achieved. This view is so common as not to need citing, but a nice example can be found in the comment of a frequent commenter here, “cobra,” on the post below (and many other places), where he says in effect that those like me who would require evidence of recent discrimination before imposing anti-discrimination remedies ignore the “structure and practices of the system put in place by society.”

What this disagreement reveals, I believe, is a difference that goes far deeper than opinions on affirmative action and discrimination; it goes to the very nature of equality and fairness and the content of the principle on which they should rest. Cutting the tie that would bind anti-discrimination remedies fairly closely to discriminatory practices reveals that the actual goal of those who advocate this approach is not to rid society of discrimination and its effects but rather to organize a society built on the principle of proportional racial and ethnic representation.

How did so many people who always thought (and often still think) that all they were doing was trying to fulfill Martin Luther King”s dream, the traditional American dream, of a society where everyone would be treated without regard to race, creed, or color come to embrace the radically incompatible principle that fairness requires extending something very much like busing to achieve racial balance to every nook and cranny of society?

I’m not sure, but I’m working on it. Preliminarily, I believe the answer has to do with the unintended consequences of the arguments that were used to justify remedies that seemed necessary at the time they were imposed. In that regard, let me call your attention to a seminal case in the transition discussed above, NAACP v. Allen, 340 F.Supp. 703 (M. D. Ala. 1972).

I find this case particularly revealing, and interesting to me for reasons that go beyond its substance: it involves blatant discrimination by the Dept. of Public Safety (read state troopers) in Alabama, where I grew up; it was decided by then U.S. District Judge Frank M. Johnson, one of the heroes of the civil rights era; and one of the lead attorneys for the successful plaintiffs is an old friend of mine.

From Judge Johnson’s opinion:

Plaintiffs have shown without contradiction that the defendants have engaged in a blatant and continuous pattern and practice of discrimination in hiring in the Alabama Department of Public Safety, both as to troopers and supporting personnel. In the thirty-seven-year history of the patrol there has never been a black trooper and the only Negroes ever employed by the department have been nonmerit system laborers. This unexplained and unexplainable discriminatory conduct by state officials is unquestionably a violation of the Fourteenth Amendment. [citations omitted]

Under such circumstances … , the courts have the authority and the duty not only to order an end to discriminatory practices, but also to correct and eliminate the present effects of past discrimination.

Now note the following dramatic remedies Judge Johnson imposed (I have omitted some):

I. That defendants’ motion to dismiss be and the same is hereby denied.

II. That the defendants John S. Frazer, as Director, Alabama Personnel Department and Walter L. Allen, as Director, Alabama Department of Public Safety, their agents, officers, successors in office, employees and all persons acting in concert or participation with them, be and they are hereby enjoined from engaging in any employment practices, including recruitment, examination, appointment, training, promotion, retention or any other personnel action, for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment, on the ground of race or color.

III. It is further ordered that the defendants be and they are each hereby enjoined from failing to hire and permanently employ after the probationary period, one Negro trooper for each white trooper hired until approximately twenty-five (25) percent of the Alabama state trooper force is comprised of Negroes. This injunction applies to the cadet and auxiliary troopers as well as to the regular troopers. It shall be the responsibility of the Department of Public Safety and the Personnel Department to find and hire the necessary qualified black troopers.

IV. It is further ordered that the defendants be and they are hereby enjoined from conducting any training courses for the purpose of training new troopers until the groups to be given said training courses are comprised of approximately twenty-five (25) percent black trooper candidates.

V. It is further ordered that the defendants be and they are each hereby permanently enjoined from failing to hire supporting personnel for the Department of Public Safety in the ratio of one Negro for each white until approximately twenty-five (25) percent of the supporting personnel are black. The decree in United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970) is hereby amended insofar as the Department of Public Safety’s employment practices are concerned.

….

VII. It is further ordered that:

1. The defendants shall assign employees on the basis of their training and ability, without regard to race. Negro employees shall not be assigned to serve exclusively or predominantly Negro clientele.

2. The defendants shall advise the public in all advertisements and announcements that they will appoint and employ persons on an equal opportunity, merit basis, without discrimination on the ground of race or color. In such public announcements, the defendants shall advise potential and actual applicants and employees of their right to be free from discrimination. Said announcements shall be made throughout the State of Alabama within thirty days from the date of this order.

….

I suggest you now go back and re-read the remedies Judge Johnson imposed. I’m struck by a number of things, particularly the absence of any perceived contradiction between prohibiting the defendants from doing anything in the future

for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment, on the ground of race or color

— from requiring them, in short, to make all future decisions “without regard to race” — at the same time they were required to hire one black for every white until blacks made up 25% of the employees.

But I think there is something much more fundamental, and far-reaching, than mere inconsistency that is implicit in these remedies. The logic of the 25% solution reveals, I believe, that Judge Johnson believed (perhaps unconsciously assumed) that the defendants’ most egregious offense was not that they discriminated against individual applicants — or in this case, would-be applicants — or even that they excluded a whole class of people, blacks, from consideration as applicants. Their most egregious offense, this remedy implies, was that by virtue of their discrimination they violated the right of blacks as a class, not as individuals, to be represented in the state troopers to the extent that their presence in the state’s population — about 25% — warranted. The Dept. of Public Safety, in short, was required to hire — just as the schools for a time were required to assign students — not on a non-discriminatory basis (the remedies that seem to require that notwithstanding) but to achieve racial balance.

The arguments that would be required to defend remedies of this sort have had the effect of trespassing upon and threatening to take adverse possession of the older, traditional principle holding that everyone has a right to be treated without regard to race, creed, or color. Or maybe it’s something even more insidious than adverse possession (that’s what happens when trespassers are allowed to claim ownership of property they have trespassed upon). Maybe it’s more like the invasion of the body snatchers, where an alien principle of proportional representation invades the body of the old “without regard” principle, leaving only an external shell of rhetorical nods to colorblind non-discrimination.

For what it’s worth, my problem is not with Judge Johnson or even, on one level, with his remedy. The egregious discrimination of the Ala. Dept. of Public Safety no doubt required a more draconian remedy than simply a command to stop discriminating and don’t do it any more. The problem is that over time the goal of racial balance came for many liberals to supplant the goal of non-discrimination, which is why liberals hope and conservatives fear that Justice O’Connor’s hope in Grutter that racial preferences will not be needed 25 years from now (well, actually 23 years from now, but who’s counting?) was such an empty fig leaf covering her justification of continuing racial discrimination.