Conventional Race Wisdom From Berkeley

Ian F. Haney López, a law professor at Berkeley, begins his long and revealing article in today’s Chronicle of Higher Education, “Colorblind to the Reality of Race in America,” by asking: “How will race as a social practice evolve in the United States over the next few decades?”

I am tempted to dwell on the observation that only in Berkeley is race a “social practice,” but I’ll avoid the temptation. What I will do is urge everyone to read the whole thing, for it provides a nearly perfect compendium of what is now conventional wisdom on the left, on campuses, and among influential Democrats about what “civil rights” has come to mean.

Like almost everyone on the left these days, López regards “civil rights” as having nothing intrinsically to with discrimination but rather as an effort to end “subordination,” which he implicitly defines as the unequal distribution of anything and everything. It follows, for him, that racial equality will be achieved only when all racial groups are identical in everything worth measuring.

López is entitled to his own opinion, and some would say even to his own definitions, but he does more. First, he interprets the history of civil rights, including the legal history, through the prism of his own prejudice. Thus the argument for “colorblindness,” which prevailed in civil rights circles from as early as the 1830s to the late 1960s, was never, in his view, a principled argument. It was merely a tactical first step on the road to his version of equality. When that tactic was no longer useful, it was sloughed off like the dead skin of a snake, and its opposite — a demand for color conscious racial preference — was conveniently embraced. Colorblindness came to be seen as the problem, not the solution, in large part because racial discrimination was no longer regarded as the primary evil to be cured.

For the first half of the 20th century, colorblindness represented the radical and wholly unrealized aspiration of dismantling de jure racial subordination. Thus Thurgood Marshall, as counsel to the National Association for the Advancement of Colored People in the late 1940s and early 1950s, cited Harlan’s celebration of colorblindness to argue that racial distinctions are “contrary to our Constitution and laws.” But neither society nor the courts embraced colorblindness when doing so might have sped the demise of white supremacy. Even during the civil-rights era, colorblindness as a strategy for racial emancipation did not take hold. Congress and the courts dismantled Jim Crow segregation and proscribed egregious forms of private discrimination in a piecemeal manner, banning only the most noxious misuses of race, not any reference to race whatsoever.

In the wake of the civil-rights movement’s limited but significant triumphs, the relationship between colorblindness and racial reform changed markedly. The greatest potency of colorblindness came to lie in preserving, rather than challenging, the racial status quo. When the end of explicit race-based subordination did not eradicate stubborn racial inequalities, progressives increasingly recognized the need for state and private actors to intervene along racial lines. Rather than call for colorblindness, they began to insist on the need for affirmative race-conscious remedies. In that new context, colorblindness appealed to those opposing racial integration. Enshrouded with the moral raiment of the civil-rights movement, colorblindness provided cover for opposition to racial reform.

An unsurprising corollary of the “civil rights” movement’s roller-coaster ride on colorblindness is the equally unstable location of the racist opposition (all opposition to López’s views is by definition racist): at first the racists opposed colorblindness, but after the civil rights movement changed its position, those who agreed with its former position were also racist.

I believe López’s history is so wrong as to be risible. Arguing that “[e]ven during the civil-rights era, colorblindness as a strategy for racial emancipation did not take hold,” that Congress did not legislate as clearly as it could that race was not to be used as a basis for favor or disfavor, requires a systematic ignoring or misreading of both the clear text and the equally clear intent of the civil rights legislation of the 1960s, including the two presidential executive orders on “affirmative action” that I’ve often cited.

What is perhaps even more surprising than this misinterpretation of history, however, is law professor López’s even more bizarre misreading of some of the most pertinent legal history. He writes, for example, that in Bakke “the court ruled that the need to redress the legacy of segregation made strict colorblindness impossible.”

In fact, Justice Powell’s controlling opinion said almost exactly the opposite. Indeed, he devoted one entire section of his opinion to rejecting the very argument that López’ is peddling here, that it is legitimate to discriminate against whites (or members of any racial or ethnic group) in order to benefit blacks (or others), even where the latter group’s disadvantages are the result of historical discrimination. Here’s Powell in Bakke, citations omitted:

Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white “majority,” the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. As this Court recently remarked in interpreting the 1866 Civil Rights Act to extend to claims of racial discrimination against white persons, “the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves.” And that legislation was specifically broadened in 1870 to ensure that “all persons,” not merely “citizens,” would enjoy equal rights under the law….

Over the past 30 years, this Court has embarked upon the crucial mission of interpreting the Equal Protection Clause with the view of assuring to all persons “the protection of equal laws” in a Nation confronting a legacy of slavery and racial discrimination. Because the landmark decisions in this area arose in response to the continued exclusion of Negroes from the mainstream of American society, they could be characterized as involving discrimination by the “majority” white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that “[o]ver the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’”

Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white “majority” cannot be suspect if its purpose can be characterized as “benign.” The clock of our liberties, however, cannot be turned back to 1868. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others. “The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’ — that is, based upon differences between ‘white’ and Negro.”

Once the artificial line of a “two-class theory” of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived “preferred” status of a particular racial or ethnic minority are intractable. The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments. As observed above, the white “majority” itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only “majority” left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit “heightened judicial solicitude” and which would not. 36 Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence – even if they otherwise were politically feasible and socially desirable.

Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group’s general interest. Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. Third, there is a measure of inequity in forcing innocent persons in respondent’s position to bear the burdens of redressing grievances not of their making.

By hitching the meaning of the Equal Protection Clause to these transitory considerations, we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces. Disparate constitutional tolerance of such classifications well may serve to exacerbate racial and ethnic antagonisms rather than alleviate them. Also, the mutability of a constitutional principle, based upon shifting political and social judgments, undermines the chances for consistent application of the Constitution from one generation to the next, a critical feature of its coherent interpretation. In expounding the Constitution, the Court’s role is to discern “principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place.”

If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. When they touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background.

Powell was equally clear about the impermissibility of racial preferences in the present in order to correct the effects of “societal discrimination” in the past. Identified individual victims can, and should, be made whole, but government agencies may not engage in wholesale social engineering to raise, or lower, racial or ethnic groups to where they might have been absent past discrimination. Again, here’s Powell:

The State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The line of school desegregation cases, commencing with Brown, attests to the importance of this state goal and the commitment of the judiciary to affirm all lawful means toward its attainment. In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of “societal discrimination,” an amorphous concept of injury that may be ageless in its reach into the past.

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the extent of the injury and the consequent remedy will have been judicially, legislatively, or administrative defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations, it cannot be said that the government has any greater interest in helping one individual than in refraining from harming another. Thus, the government has no compelling justification for inflicting such harm.

….

Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of “societal discrimination” does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination. That is a step we have never approved

I quote Powell at length because so many people have forgotten how powerfully he rejected the view that racial discrimination in the present is justified as remedy for racial discrimination in the past.

In short, I find López’s history, including his legal history, as flawed as his preferred version of equality is unappealing.