Constitutional Opinions: Private Preferences

...Reverse discrimination does not stampdisappointed white candidates with a stigma of inferiority or signal that minority individuals cannot bear to mix with them...

...What are the proper criteria for a particular job or a spot at a particular college or law school...

...I think it is a particularly strong argument in relation to private affirmative action programs...

...But Chancellor Berdahl reports that minority admissions have not fallen significantly at Berkeley's other graduate programs, because admissions there were not so closely geared to test scores and GPAs...

...The Washington-based Center for Individual Rights, which fought the Hopwood case, is now litigating similar cases against the University of Michigan and the University of Washington...

...Last fall Congress actually voted down a more targeted attack on preference schemes...

...California's Proposition 209, forbidding racial preferences in state employment, contracting, and admissions to state universities, survived court challenges last year...

...What if the station had specialized in music or commentary of special interest to African Americans...

...In Lutheran Church-Missouri Synod v. FCC, the court struck down the affirmative action requirements imposed by the Federal Communications Commission on a religious broadcaster...

...Supreme Court rulings had already made it clear that state governments could not segregate or discriminate on the basis of race...

...In the Grove City College case (1984), the Supreme Court held that a school would not be covered by Title VI simply because its students received federal loans...

...Why go after private landlords, private restaurants, or private schools...

...The FCC policy clearly merited rejection, but the case is worth pausing over...

...What the FCC objected to was favoring students from a nearby Lutheran seminary even for secretarial and maintenance jobs at the station...

...04 The American Spectator • November 1998 63...

...And the Republican Congress has done nothing to change relevant federal law...

...What if it had been a Spanish-language station...

...zo9 and its counterparts in other states, but also the Canady bill in Congress and its counterparts in state legislatures, have focused exclusively on public institutions...

...Court of Appeals illuminates the difficulties...

...Would opponents of affirmative action want to see a rule of neutrality that allowed white applicants (or government investigators) to file complaints whenever an organizaWhy affirmative action won't disappear anytime soon...

...In other words, when non-discrimination norms are actually extended to everyone, it will no longer be so easy to reduce them to a numbers game...

...What the Hopwood court found to be prohibited to the University of Texas under the Constitution is, by the Civil Rights Act, almost certainly prohibited to Harvard and Stanford, too...

...Foes of affirmative action have kept up their struggle through the courts...

...Now it has become the model for similar proposals elsewhere, including the one on the ballot in Washington state this November...

...Initial discovery in these cases has shown similar patterns of standards so disparate as to constitute entirely separate admissions systems for different races...

...When the system was applied to all applicants, there was a substantial dropoff in minority admissions...

...The Civil Rights Act has always been thought to parallel the legal requirements imposed on the government by the Constitution...

...but Congress promptly amended the law to stipulate that even such a small, indirect kind of federal funding would trigger the anti-discrimination principle...

...Robert Berdahl, chancellor of UC Berkeley, has said that his university cannot fulfill its mission "as a public university, serving all of the people of California, unless we have a balance of representation from people who have historically not had access to a place like Berkeley...

...In Hopwood v. University ofTexas, the federal Court of Appeals for the Fifth Circuit condemned the admissions scheme at the UT Law School —so skewed by affirmative action that minority applicants were automatically let in with scores that would have meant automatic rejection for white applicants...

...Critics argued that if racial discrimination had been wrong when blacks were the victims, it was also wrong when the victims were white...

...Take the case of the Lutheran radio station...

...Should it matter that the criteria chosen might generate a bigger share of successful candidates from one group or another...

...Nobody expects a disappointed white applicant to challenge an institution simply for admitting more minority candidates than their numbers in the population might warrant...

...Yet within the world of higher education, the opinion prevails that a private school cannot be challenged this way...

...62 November 1998 • The American Spectator tion employed fewer whites than might have been expected from the proportion of whites in the local labor force...

...0 ne might be tempted to give private institutions—such as private radio stations—more leeway than public institutions, since a private institution may cultivate a distinctive character in a sense that would be improper for the government...

...Charles Canady (R-Fla...

...A recent ruling by the D.C...

...Nobody expects a court case that challenges the Berkeley English Department's reliance on personal letters of recommendation—so long as it relies on such letters for applicants of all races...

...It highlights the difficulty of separatingaffirmative action from a rigorous nondiscrimination policy...

...The same thing happened at Berkeley's law school under a race-neutral system...

...We might then hope to see a gradual decline in emphasis on race, which is what we long ago set out to achieve by enacting civil rights legislation...

...It won't happen right away...

...Of course, neither did sex discrimination have the same social significance as racial discrimination, since women were always the daughters, sisters, wives, and mothers of men...

...On the one hand, there has been progress at the state level...

...Laws against discrimination do apply to private employers, and even to private colleges and universities...

...missible for private institutions...

...Unless we judge "non-discrimination" by results—i.e., by racial breakdowns of the hirings or admissions—then how can we define such a policy...

...One way or another, this category includes virtually every private institution of secondary and professional education in the country...

...While court challenges have raised questions about affirmative action in a range of public settings, no case has yet squarely raised the question of whether the policy is perJEREMY RABKIN is a professor of government at Cornell University...

...Not only California's Prop...

...Something like this intuition seems to be at work in the anti-affirmative action movement...

...1 Back in the 1960's, when Congress passed the first serious civil rights legislation in a century, one of the central issues in contention was whether private conduct should be covered...

...One of the strongest arguments for doing so was that if private institutions were pervasively segregated, the authorities in states like Alabama and Mississippi would be forever backsliding into racist policies...

...It is a dangerous argument— demanding that society be redeemed to save the government from temptation—but it does have force...

...Likewise, people with handicaps almost always had able-bodied relatives likely to care deeply about their wellbeing...

...A not unreasonable hope is that when non-discrimination norms apply equally to candidates of all races, those norms will be interpreted in a more flexible and accommodating spirit, without preconceptions of what results they must assure...

...When affirmative action was deeply entrenched, opponents easily attacked its premises with general slogans...

...It is perfectly true—and pointless to deny—that affirmative action does not injure whites in the same ways that the old discrimination injured minorities...

...zo9 standards to federal programs, but despite rhetorical endorsements from GOP leaders, it has gone nowhere...

...So long as Stanford has affirmative action, Berkeley will feel it is cheated and will struggle to match its "success" in this regard, even if it means skirting the law...

...No one would say that the government could favor employees learned in Lutheran doctrine, but even the FCC seemed to allow that a private, church-operated station could do this for certain positions most relevant to the content of its broadcasts...

...However, within a year or so we are likely to see a lawsuit against a prominent private school, and I hope it succeeds...

...Would it have been improper to prefer secretarial or maintenance employees who were fluent in Spanish to make things easier for program guests who spoke little English...

...has sponsored a bill that would apply California's Prop...

...Cheryl Hopwood pointed to a system in which test scores and GPAs were decisive for white applicants and almost irrelevant for minority applicants...

...Yet there are also signs of hesitation in the attack on affirmative action...

...The FCC had fined a radio station owned by the Lutheran Church for favoring the hiring of employees well versed in Lutheran doctrine, thereby keeping down minority employment...

...But then arose a more complicated question: Should everything that was ever done in the name of preventing one kind of discrimination be done to prevent the other kind...

...Related to this is the second big question: Would we force all institutions to observe the sort of strict civil-service neutrality we would impose on the government itself...

...Yet the Church saw helping the seminary as part of its mission, and as a way of maintaining the atmosphere that gave its broadcasts their distinctive character...

...Would it have been improper to prefer employees who were most comfortable with the styles and idioms of that subculture...

...As a strictly legal matter, there can be little doubt about the conclusion...

...44 No case has yet raised the question of whether the policy is permissible for private institutions...

...The Clinton administration will certainly not enforce the law: Norma Cantu, assistant secretary for civil rights in the Education Department, was so hostile to Hopwood that, until she was reined in by the Justice Department, she instructed schools in Texas not to heed it...

...But a few more successful lawsuits might move the country well along toward that goal in the next few years...

...Title VI of the 1964 Civil Rights Act forbids discrimination by any recipient of federal funds...

...Congress may not be much help in the short term...

...Yet during the 1970's, we cranked up laws to suppress sex discrimination and discrimination against the handicapped...

...CONSTITUTIONAL OPINIONS by Jeremy Rabkin Private Preferences A ffirmative action is certainly under siege, but when it will be surrendered as official policy—and what sort of racial policy will take its place—remains much in doubt...

...The Court of Appeals, in a strongly worded opinion by Judge Lawrence Silberman, mocked the absurdity of a policy that denied the relevance of religious training for jobs at the radio station while insisting that race-based hiring would contribute to "diversity" in its programming...

...Thus Michael Sharlot, dean of the UT Law School, protested last year that his institution faced a "disastrous situation" because it was "playing under different sets of rules from the rest of the country," allowing other schools to lure away minority students from UT...

...No one can imagine a court endorsing reverse discrimination suits that match the claims currently brought by minority claimants...