The question I’d like to pose this Martin Luther King Day weekend is: Are we likely to witness the end of racial preferences soon — not just in our lifetimes, not just within the 25 years that Justice O’Connor “expected” in 2003, but in the next, say, 5 to 10 years?
I think there is a good chance that we will. But I’m a non-determinist, so nothing is inevitable. In other words, I think we’ll win, but I know that we can still lose.
There are different ways to think about this question, and different factors to consider.
Demographics, Law, Attraction, Vision
For instance, consider demographics. America is becoming increasingly multiethnic and multiracial — indeed, individual Americans are increasingly not only multiethnic (which they’ve always been), but also multiracial (which has been less common). It should be obvious that a legal regime based on sorting people according to race and national origin becomes more and more untenable in such a society.
On the other hand, you could also argue that, as the number of whites goes down, the difficulty of getting rid of preferences for nonwhites will go up.
Or consider the law. There are federal statutes on the books that already make it illegal to give preferences according to race and ethnicity in the three areas where they are commonly given: education, employment, and contracting. Thanks to ballot initiatives, more and more states are following suit. And right now the trend among judges is toward greater and greater skepticism of such preferences, as both a statutory and constitutional matter.
On the other hand, we also know that federal judges are perfectly capable of ignoring clear bans on racial preferences — as we’ve seen in Supreme Court cases like Weber and Bakke. And we are only one justice away from a Supreme Court that views politically correct racial discrimination as no big deal. It’s not just the Super Tuesday ballot initiatives that are important for racial preferences later this year: The presidential election is at least as important. I should add that bureaucrats are also happy to ignore clear bans — witness the way university officials are trying to deemphasize academic achievement (as reflected in grades and standardized tests like the SAT) in favor of “holistic” review here in California, simply as a way around the ban on racial preferences in university admissions.
Another way to think about the answer to this question is to ask, What is it that makes racial preferences still attractive to many?
I would suggest that the short answer is: Because blacks are on the short end of so many disparities. Think about it: If black Americans were as wealthy and successful, proportionately, as whites, then there would be no point in preferences for them, and if there were no preferences for blacks, it’s hard to imagine that there would still be preferences for anyone else.
So, what is the reason for those disparities? And here again there is a short answer, namely that 7 out of 10 blacks are born out of wedlock. Even among liberal blacks, it is increasingly recognized that this is the real problem — not discrimination. Those who favor preferences do so, I am convinced, because they think that discrimination justifies them (a non sequitur, to be sure, but there you are). As Jim Crow fades into the past, however, and as everyone fesses up to the fact that the main cause of present disparities is not discrimination, then the pressure for preferences must fade, too.
On the other hand, who says we have to be logical? Some people are so outraged by racial disparities — or, at least, like to parade such outrage — that they will be willing to do anything to get rid of them, no matter what their cause. And if they want to get rid of racial disparities, the fastest way to do it in the short run — or, at least, the most ostentatious and psychically satisfying way — is to take from one race and give to another.
But perhaps the most basic way to answer the question is to ask, How likely is it that most Americans share a vision that includes the continued use of racial preferences?
If you believe in individualism and individual rights, in personal accountability and responsibility, in limited government and free markets — then, no doubt about it, you will find it very offensive if the government sorts its citizenry by race and national origin, and treats some better and others worse depending on which box they are in. And I think that most Americans do have a vision like this, and the survey data bear me out.
But, unfortunately, not all Americans share this vision. If you believe in collectivism and group rights, and are skeptical that individuals can be expected to overcome challenges, roll your eyes when people mention “morality” and “values,” view “hard work” and “law-abiding citizens” as overrated, and are not convinced that the Nanny State and socialism ought to be given up on just yet — well, then, making sure that each group gets its “fair share” doesn’t seem so bad. And those people are out there. As Thomas Sowell wrote, we have “a conflict of visions.”
More on the Vision Thing
Let me elaborate now on the vision that I think most Americans share when it comes to matters of acceptable and unacceptable diversity. It’s certainly relevant to the future of affirmative action, as I just discussed, but it goes beyond that, too.
A country that is multiracial and multiethnic — especially a country with lots of immigration — must take common values and assimilation seriously. Assimilation is not a dirty word: You come to America, you become an American — and then other Americans accept you as such. E pluribus unum.
The assimilation — the grounding in common values — that’s needed is not limited to the new arrivals. And sometimes immigrants come here more solidly grounded in traditional American values than the folks already here.
The need for nonimmigrant Americans to assimilate comes up in another way, too. As I’ve discussed, racial and ethnic disparities are often pointed to as proof of discrimination — and the need for racial preferences — when in fact those disparities are the result of bad life choices: having children out of wedlock, using drugs, committing crimes, dropping out of school, and so forth.
So, for immigrants and nonimmigrants, there are ten crucial aspects of assimilation. There’s nothing wrong with ethnic pride, and we don’t all have to eat the same foods or listen to the same music, but we do all need to: (1) speak English, (2) respect other racial and ethnic groups, and, conversely, (3) not ask for special preferences for our own racial or ethnic group. We must also not (4) bear historical grudges, (5) believe that working and studying hard are “acting white,” or (6) have children out of wedlock. On the other hand, we should (7) follow the law, (8) be reasonably polite to one another, and (9) respect women. Finally, (10) we should all be patriotic, proud Americans.
Now, I think that most Americans believe that none of these rules is really that hard for individuals to follow or that controversial for politicians to endorse.
There are some loopy professors who really hate the idea of a melting pot, and some poor souls who just can’t seem to follow the law, and some demagogues who make their livings through false accusations of racism. But I’m talking about the overwhelming majority of Americans, of all racial and ethnic backgrounds, and both political parties.
What politician, in other words, and what American has a problem with this vision?:
An America in which no American refuses to accept another American because of his race or national origin, and no American asks for special treatment on that account, and no American carries a grudge because his neighbor’s ancestors did something to his own ancestors. And no American treats women as second-class citizens either, whatever the culture or country or ‘hood he came from.
Likewise, Americans are reasonably polite to one another: Treating each other as human beings is required of us all with whomever we deal and is not viewed as being an Uncle Tom; being sullen and truculent is not being authentic or tough or cool. Studying hard and working hard is not acting white, and it is expected of everyone. People don’t self-destruct by breaking the law or having children before they are married.
We must be able to communicate with one another, so we all must learn English and use it as our principal language.
Finally, we are proud of being Americans, and accept and welcome those who follow these rules as Americans, too.
As a conservative, I know that it is foolish to expect Heaven on earth — even in a fresh New Year — and that there will always be poverty and crime and bigotry and ignorance.
But, on the other hand, the country as a whole would prosper, wouldn’t it, and our society would be pretty tranquil, wouldn’t it, if these rules were followed by most of us? And are they really that hard?
As I said, I believe the overwhelming majority of Americans share this vision, and that’s another reason why the days of racial preferences are numbered. And, conversely, a nation with permanently entrenched racial preferences and that rejects this vision is not a nation that can hold together and have E pluribus unum as its motto.
Anyway, thank you for letting me explain why (for a variety of reasons) I think we’ll win, but why our winning is not inevitable — and what’s at stake and why it’s so important that we win.
— Roger Clegg is president and general counsel of the Center for Equal Opportunity.