Roger Clegg Objects To Bean-Counting

The following is a Guest Post from Roger Clegg, president and general counsel of the Center For Equal Opportunity.

NOW THAT BARACK OBAMA IS PRESIDENT, MAY WE PLEASE STOP THE BEAN-COUNTING?

The Washington Post had an editorial last month, “Bean Counting, 2008,” about the relative ease with which President-elect Obama is putting together an administration that “look[s] like America” — to quote, as the Post does, Bill Clinton’s promise to do so when he was President-elect. Gone unanswered in the editorial is why we should care about the racial/ethnic/gender makeup of the new political appointees in the first place. A couple of weeks later, The Los Angeles Times praised Obama for choosing a cabinet that passes the twin tests of “the quality of the appointees” and “identity politics,” acknowledging that there is some tension between the two, and that, while both are important, the former is somewhat more so.

Some of this bean-counting may be inevitable, but it has gotten worse and worse in recent years, and the time has come to stop it.

Nor is this bean-counting limited to new presidential administrations, of course. We see it asserted frequently that a city’s public workforce ought to look like the rest of the city, and that a company’s workforce ought to look like its customer base, and that a state university’s student body ought to look like the state as a whole. Of course, this is always part of an argument for why there needs to be more of this or that racial/ethnic/gender group, and that means “goals,” and that means quotas.

But why exactly is all this mirroring needed? That’s usually never explained.

(Permit me a long parenthetical here: Sometimes — in the specific context of schoolteachers in particular — you’ll hear the justification that K-12 faculty should look like K-12 students because the latter need the role models provided by the former. But that’s only if the school district has a lousy lawyer. The Supreme Court flatly rejected the role model rationale over twenty years ago, in Wygant v. Jackson Board of Education (1986). A decade before that, in Hazelwood School District v. United States (1977), the Court had similarly noted that a school district could not point to the racial makeup of its student body as a justification for the racial makeup of its faculty. Justice Powell wrote in Wygant, “Carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.”)

Employment-discrimination experts will admit that what matters, even if you like the bean-counting approach, is not the demographics of the general population, but the demographics of the folks actually applying for jobs. [Editorial emendation: Actually, as I’m sure Clegg would have said if he weren’t needlessly worried about taking up too much DISCRIMINATIONS bandwidth, the crucial demographics are not limited to who actually applies; the relevant “pool” is usually thought to comprise those who are available, interested (both of which might be indicated by applying), and qualified.]

But the Obama bean-counting is probably motivated less by legal considerations and more by politics. And I suppose that there would be some political costs to announcing an all-star Cabinet where, alas, there are only Latvian-Americans and no Latinos at all. But even if a politician lacks the gumption to be willing to pay those costs, how likely is it that most people — the professional complainers in the grievance industry aside — care about hiring other than the very best once you get below the photo-op level?

Why does the administration need to look like America? Why do employees need to look like their customers? Why do the bureaucrats at the District of Columbia DMV need to look like a cross-section of the District of Columbia?

It makes just as much sense, and sounds even nicer, to say: “Our DMV should look like America,” and “Our company should look like the world,” or even “Our government should look like the universe, including the planet Twilo.” Well, maybe not that last part, but everything up to that.

Here’s my summary, tongue only partly in cheek, for why we are told that a diverse workforce is essential: People who are one color are really quite fundamentally different from people who are another color. For instance, people of one color like to be treated decently, while, unbeknownst to the rest of us, people of other colors do not or are indifferent. Knowing this is called “cultural competence.” What’s more, different groups have different knowledge: Some racial groups are statistically more likely to know about chemistry, and others to know about dancing, and some can speak Spanish. Rather than simply come right out and ask an applicant what he or she knows about, we are better off using race or ethnicity or sex as a proxy for expertise in certain areas. But this is not stereotyping. Anyhow, bottom line: We have to make sure that all the colors get mixed in with just the right proportions, or otherwise the government might not do the things or know the things we want it to in just the right proportions either.

In other words, nonsense on stilts.

Of course, we also have here the usual problem that, if we don’t want any group to be under-represented, then it follows as the night the day that we don’t want any group to be over-represented either. Stay away, you excess white males, and especially you overachieving Democratic Jews, of any and all genders.

So here’s my bottom line: For a variety of reasons, the mix of people who are willing to work for the federal government, and are best qualified to do so, may not turn out to be exactly the same as the mix in the general population. For all I know, it might, but it also might not. My point is, it doesn’t matter.

Discriminating to ensure that it does is unfair, silly, and harmful. Whenever the government is distracted from looking for anyone other than the best possible appointee, it is in the end the taxpayers who will pay the price. Hire by content of character, not color of skin.

And this, of course, is true not just for the Obama administration, but for the District of Columbia DMV and the XYZ Corporation. The bean-counting that we have to go through with every administration sets a bad example for our other employers. And what better time to stop it than now, with an African American president who was put there by voters, not bean-counters?

If a job needs to be done — and, to be sure, when you talk about the federal bureaucracy, that’s a big “if” — then wouldn’t most Americans just rather have it done by the best qualified person? If the price of having a government that looks like me is that I get blown up in my sleep, then I’m happy for the government to look like someone else.

Editorial Postscript: It has often been observed by hard-edged realists, quoting shamelessly (and usually unwittingly) from the famous Finley Peter Dunne, that “politics ain’t bean bag,” but, for liberals, and even some misguided Republicans, it is often bean counting. Of course, cynical critics will no doubt say that Clegg and I oppose such practices only because we aren’t beans.