Let’s Sue Somebody
Four areas of racial preference and why they persist.


On Tuesday, the Senate Judiciary Committee will hold confirmation hearings for Grace Becker, who has been nominated to head the Justice Department’s civil-rights division. Senator Kennedy will preside, and you can be sure that he will use this platform to criticize the office in three ways. First, he will say that its political appointees have “politicized” the division by occasionally, horrors, hiring nonliberals and sometimes, double horrors, declining to follow the recommendations of liberal career bureaucrats there. Second, he will claim that the division has been lax in defending the rights of racial minorities, particularly their voting rights, since the division has taken the outrageous position that our voting laws must ensure, not only that legitimate voters are allowed to vote, but also that fraudulent voting be stopped. And, third, he will complain that the administration in general, and the division in particular, has turned the clock back on civil-rights enforcement by, once in a while, challenging the use of racial preferences, a.k.a. affirmative action.

To state the first two criticisms is to refute them. As for the third, while it is true that the administration has filed a handful of cases challenging racial preferences over the past seven years, it really ought to be castigated for not filing more (and for not getting the federal government’s own house in order, regarding its contracting and employment policies, and for filing unhelpful briefs like the ones in the University of Michigan cases).

Moreover, in one important area — namely voting — the government’s policies have continued to support racial preferences. But first, some background.

When it comes to racial preferences, things could be worse. We could have racial quotas in housing, in television programming, in restaurant seating, in car pools, in you name it.

Instead, the use of preferences is limited principally to four areas. The drawing of district lines takes race into account during reapportionment; employers frequently strive to achieve a more “diverse” workforce by recruiting, hiring, and promoting with an eye on race; universities grant admission preferences to “underrepresented” groups (and often award scholarships and the like with an eye toward race, as well); and government agencies at all levels frequently have racial set-asides for their contracting.

This is still a lot of discrimination, and it happens notwithstanding: the great unpopularity of racial preferences among most Americans; the fact that our laws generally prohibit or at least greatly circumscribe such discrimination (and judges are therefore quite skeptical of them, including a majority of the Supreme Court’s justices); and the inconsistency of the practice with our national motto E pluribus unum and the American creed. Why?

I think that many Americans tolerate this discrimination, even though they don’t like it, because of the fact that, without it, there would be racial disparities in some of these areas (mostly among blacks), and there is an assumption that somehow this “underrepresentation” is closely tied to America’s tragic history of discrimination. This assumption is eroding, since it is not true in 2008; the problem is not discrimination but, principally, the failure of a disproportionate number of African Americans to take advantage of the opportunities available to them, largely in my view for cultural reasons and, especially, because of the fact that 7 out of 10 blacks are born out of wedlock, which correlates with all kinds of social problems.

But that is only why the discrimination is tolerated by the general public. The general public never adopted these preferences nor would it do so, and the answer to why those who actually made that decision did so and stick by it is narrower, and somewhat different in each instance.

In brief: Redistricting preferences are, as I intimated earlier, a result of the way the Justice Department has applied the Voting Rights Act. Employment preferences take place because of a belief that diverse workplaces will somehow be more productive, either because the company must look like the customer base (dumb) or because there can be a diversity of employee experiences and viewpoints if and only if that workplace achieves a p.c. level of multiethnicity (dumber); I elaborate on this here. Admission preferences happen because university administrators are politically correct cowards. And contracting preferences are attractive because a racial spoils system is often politically tempting.

Now, none of the relevant discriminators here — Justice Department officials, corporate managers, university officials, and contracting-related pols — is immune from public opinion, and none is completely insensate to evidence that what they are doing is a bad idea. The first and last groups are, in particular, subject to political pressure since they are the government, after all; and, as for corporate managers and university officials, the evidence continues to mount that the use of preferences is bad for companies and for minority students, respectively.

But something more is needed. One recalls this passage from The Education of Henry Adams:

Indeed, one day when Adams was pleading with a Cabinet officer for patience and tact in dealing with Representatives, the Secretary impatiently broke out: “You can’t use tact with a Congressman! A Congressman is a hog! You must take a stick and hit him on the snout!”

And how are our four groups of quota-mongers to be rapped on the snout? By suing them.

To varying degrees, this is already taking place. The Justice Department has been sued regarding the Voting Rights Act; that case is likely headed to the Supreme Court. Several complaints against universities regarding their racially discriminatory admission policies have been filed with the Education Department’s Office for Civil Rights. Occasionally a company gets sued for affirmative discrimination, to use Nathan Glazer’s phrase. And more frequently — and quite successfully — lawsuits have been brought against various government agencies for contract discrimination; a number are pending now, at least one in a federal court of appeals.

But the pressure must be kept on. The specific kinds of lawsuits that ought to be brought are described in more detail here. Someone — in fact, the more the merrier — should sue.

Roger Clegg is president and general counsel of the Center for Equal Opportunity in Falls Church, Va.