Segregation, 90s Style, and How to Fight It
GREVE, MICHAEL
Segregation, 90s Style, and How to Fight It By Michael Greve ADecember 5 House committee hearing on race and sex preferences provided a long-overdue opportunity to put egregious quota schemes on...
...The irrepressible Deval Patrick has averred that Adarand did not even strike down the set-aside program directly at issue in the case...
...Planet Earth, the official description explains in tortured prose, seeks to teach "cultural sensitivity to other ethnic groups" and "to encourage all of today's ninth grade students to become practitioners and defenders of the environment of Planet Earth" (emphasis in the original...
...it is to create movement in the right direction...
...This means that virtually no minority students meet the standards met by whites and Asians...
...Here is the logic: A 100 percent set-aside is obnoxious because it categorically excludes non-favored races...
...This absurd proposition is not the law, and plaintiffs have made federal cases of all the policies just mentioned...
...And conservatives know that any crack in the principle of colorblindness will sooner or later prove wide enough to accommodate a truckload of quotas and segregated institutions...
...this is why contracting set-asides and the proverbial "white firefighter cases" make up such a large portion of reverse discrimination law...
...Defendants in civil rights lawsuits propound this principle without shame or hesitation...
...The underlying principle is the same-which is why liberals feel compelled to defend the principle even in the extreme case...
...But Republican leaders lack the stomach for this sort of debate, as the December 5 hearing showed: The congressmen present-a grand total of two, Reps...
...But just as such "massive resistance" was an urgent subject of debate and of congressional attention when it was practiced by the Old South, it should be so now that it is being practiced by liberal quota enthusiasts...
...An admissions officer informed Michelle in a personal interview that she was ineligible because she was white...
...at least the last of these cases ought to be an easy win...
...They are treated as an entirely separate applicant pool-as a little Planet Earth within the general student population...
...not by mail order, nor in a hardware store...
...There will be time and occasion to debate first principles...
...Alas, pursuant to NSF funding guidelines, Planet Earth was reserved exclusively for blacks, Hispanics, and Native Americans...
...Government-sponsored race-based scholarships are the most notorious example, but there are others...
...Patricia Woods, a black applicant who was denied admission despite her superior credentials and qualifications, has sued the Institute...
...And outside the area of education, most states prohibit interracial adoptions, in practice if not by law...
...In a widely hailed July 19 speech, Clinton heartily endorsed affirmative action, while opposing programs that "create a quota, involve preferences for the unqualified, lead to reverse discrimination, or continue forever...
...A sustained campaign to roll back racial preferences depends on small but tangible victories that build political support and demoralize the opposition...
...A much larger problem lies in the pervasive official determination to preserve and defend even the most obviously unlawful programs...
...Failing that, officials will force plaintiffs to litigate over even patently unlawful programs...
...no one else need even apply...
...It is true that both the confused Bakke decision and the district court's equally confused ruling in the Texas case (which is currently pending on appeal) left officials plenty of wiggle room...
...But so, come to think of it, does a 10 percent set-aside...
...Colorblindness looked like an unstoppable steamroller only a year ago...
...This view is correct only in the most hypertechnical sense...
...The NSF's many race-restricted grants and other opportunities are supposed to benefit "historically underserved" minorities, and this noble purpose would be diluted if the historically overserved were to participate...
...For 17 years running, higher education officials across the country have administered racial admission quotas in plain violation of the Supreme Court's 1978 Bakke decision-without being called to account...
...And, especially now that Deval Patrick has broached the subject, let's talk about segregation...
...remedial or "transitional" courses of education often limit participation to selected racial minorities...
...Yet here, six years and a score of federal cases later, Ohio State is defending a permanent, categorical, 100 percent set-aside without a shred of evidence of prior discrimination...
...The federal government, for its part, will prove no more cooperative in complying with this year's Adarand decision, in which the Supreme Court subjected federal programs to the demanding Croson standards...
...He has ridiculed Republicans for seeing "quotas in every affirmative action plan the way a child sees monsters in every dark closet...
...minorities obtain admission only with the help of huge racial preferences that isolate them from the general competition...
...In fact, race-exclusive programs function on the segregationist principle of Planet Earth...
...and that, in any event, she should not be asked to bear the stigma of having been rejected "even as a minority...
...Upon further inquiry, the NSF confirmed this assessment-though not without cheerfully informing Michelle that the National Science Foundation also runs girls-only programs, one of which might eventually come to south Texas...
...However, the court permitted racial preferences and admissions "targets" to continue, and University of Texas officials openly vowed that they would henceforth practice in their basement the discrimination they heretofore had perpetrated in broad daylight...
...earlier this year, one of them-the president of Rutgers University-was tactless enough to blurt it out...
...There are many other examples of segregationist policies in multicultural garb...
...Segregation, 90s Style, and How to Fight It By Michael Greve ADecember 5 House committee hearing on race and sex preferences provided a long-overdue opportunity to put egregious quota schemes on trial...
...The only testimony to be covered by the press was delivered by Assistant Attorney General Deval Patrick: In an angry tirade, he charged the bill's sponsors with fostering racism and segregationist sentiments...
...Michelle" will soon obtain a highly favorable settlement in her lawsuit against the National Science Foundation and will walk away with a tidy sum of money...
...The Institute has responded that Woods has no legal standing to complain about a process that was designed to benefit-well, not quite her, but her race...
...The National Institutes of Health administers race-exclusive grants and programs for aspiring doctors and researchers...
...Among them is the Wright Institute, a California institution that (like most colleges and universities) considers black applicants separately from others...
...At the very least, shining a light on official lawlessness and on the most extreme policies would put civil rights advocates on the spot...
...In 1994, a federal judge ruled that the University of Texas Law School had intentionally discriminated against white applicants by considering their files separately and apart from those of minority applicants...
...it illustrates the administration's resolve to preserve quotas and set-asides at all costs...
...Hyde and Canady-reacted defensively to Patrick's rant...
...Even after an adverse judicial decision, officials will rarely change their minds or their conduct...
...But judges' reluctance to endorse segregationist "civil rights" practices hardly obviates the need for a public debate and legislative action...
...Jerry Henry, a white painting-business owner who has sued Ohio State over its 100 percent set-aside, will win his case...
...Liberals know this logic because they have used it- in reverse: It is how they got us from race-conscious "outreach" into hiring by numbers, from "targeted" college recruitment into segregated summer programs, college studies, and dormitories...
...Evidently, this is best done by isolating selected ethnic groups from the rest of us...
...Instead, the session (on the Canady-Dole bill, which would ban preferences in federal contracting) turned into an unfortunate object lesson in how not to advance a conservative civil rights agenda...
...While the latter covers only some of the available government contracts, it categorically excludes non-minorities from those contracts...
...But the task for now is not to win it all...
...This tiresome nonsense is no longer believed even within the president's own party...
...And if such large preferences were to be jettisoned (along with manifestly segregated programs), on what principle could smaller ones be defended...
...By the same logic, racially exclusive summer camps and remedial classes are only elaborations of "mere preferences...
...Not every affirmative action supporter believes this, but some do...
...Ohio State University has for years set aside 100 percent of all painting and maintenance contracts for blacks...
...Ohio State's set-aside, for example, falls squarely under the Supreme Court's 1989 decision in City of Richmond v. Croson, which held that set-asides must be temporary, flexible, and narrowly tailored to remedy the effects of past discrimination...
...Education again provides the best example...
...To revive the flagging campaign, conservatives should begin to talk about, and do something about, the most extreme, least defensible aspects of the current civil rights regime-to wit, state-imposed segregation and the arrant lawlessness on which it rests...
...This is why they insist so strenuously on the principle, and why they are right to do so...
...They categorized the NSF and NIH minority programs as opportunity-oriented, legally unproblematic set-asides...
...The important problem, though, is not a lack of conservative confidence and enthusiasm but the abstract nature of the debate...
...To this day, and for all their breast-beating about "the law" and their professed opposition to "quotas," they will not concede that any existing affirmative action program-including those of the National Science Foundation and Ohio State variety-fits that description...
...In 1994, Michelle applied to "Planet Earth," a summer environmental study camp funded in part by the National Science Foundation (NSF) and administered by Texas A&M University...
...But as this past year has shown, a big argument over affirmative action in general and over an all-or-nothing choice between "colorblindness" and "diversity" can't produce such victories...
...nor is there any reason to retreat from the ultimate goal of official colorblindness...
...Finally, "flexible" employment "targets" can often be reached only by reserving some jobs exclusively for minorities...
...When Congress returns to civil rights matters early next year, let's talk about massive resistance...
...This is being done, as always, with the best of intentions...
...Prohibitions on interracial adoptions have become the subject of a lawsuit, as has a minorities-only remedial education program in California...
...I don't know if they want to go back [to a segregated society]," Patrick added in a press interview, but "that is the risk" of banning affirmative action...
...One might ask Patrick to explain, for instance, whether he meant to suggest that blacks (or for that matter women) are naturally incapable of making it in America without cradle-to-grave preference policies...
...State and local officials across the country are defending minorities-only scholarships, educational programs, and hiring practices with the same chutzpah...
...But the logic is not self-evident to most people...
...There are good reasons to think that such threats-at least in particularly egregious cases-would have the same effect now...
...Moreover, far more than court orders, federal threats to withhold funds persuaded segregationist southern institutions to mend their ways...
...And if minorities-only hiring is off limits, so, ultimately, are the targets...
...Policies that physically separate the races have close cousins in programs that reserve government benefits exclusively for selected minorities...
...In a sworn deposition, Ohio State's designated representative testified that the program was needed because blacks cannot buy paint-not in Columbus, nor elsewhere...
...now, it's barely puffing...
...On this theory, it would be lawful to herd black people into segregated housing projects so long as the government means well and the projects are nice...
...She claims that she would have fared much better had she not been "black-tracked...
...It is also the president's position...
...This, in a nutshell, is Patrick's position...
...In some areas of the law, large and comparatively resourceful organizations-the Association of General Contractors, or trade unions-can provide effective, broad-based legal assistance...
...But, come to think of it, the National Science Foundation says the same about its programs...
...With dreary regularity, preliminary settlement talks with a state defendant in a reverse discrimination case begin and end on the same track: Yes, we know that our policy is unlawful (we, too, went to law school), but how about we cut your client in on the deal (school admission, or job, or contracts), we pay your fees, and the policy stands...
...And especially in light of the pervasive despair over black America, the insistence on uncompromising colorblindness-no matter how principled and sensible-is easily confused with intransigence and mischaracterized as "radical...
...Numerous state agencies also run educational programs on a minorities-only basis...
...Blacks-only scholarships at the University of Maryland have already been declared unconstitutional by a federal appeals court...
...Only now, and under intense political pressure, do they admit to having done so...
...While conceding that not "everybody who is against affirmative action is a racist," Patrick denounced the bill as a calculated and "disastrous" setback to integration...
...they are not a lucrative proposition for the bar...
...Short of uncompromising colorblindness, there is no stopping point...
...Superficially, such policies may enhance "diversity...
...In all other areas, potential plaintiffs must usually find their way to public interest law firms- which, being limited in number and size, cannot possibly cover the waterfront...
...Consider the case of competitive colleges and law schools, where the average test scores for admitted minorities are typically more than two standard deviations below those of Asians and whites...
...Throughout the affirmative action debate, New and moderate Democrats, from the New Republic to the Progressive Policy Institute, exhorted the administration and the civil rights establishment to distance themselves from the least defensible affirmative action policies, the better to preserve modest "preferences" in employment and education...
...Conceding that any particular programs are indeed illegal and immoral, liberals fear, will bring the entire system crashing down...
...But this advice fell on deaf ears, and it did so for a good reason: Racially exclusive programs are the partial-birth abortions of affirmative action...
...Why not, for example, ask Patrick to talk about the case of "Michelle Doe," one of a handful of white students at an inner-city school in Corpus Christi, Texas...
...Where judicial rulings are ignored, probing congressional hearings may yet prove effective...
...She provided no evidence of this nationwide conspiracy...
...Michael Greve is executive director of the Center for Individual Rights, which serves as legal counsel in some of the cases discussed in this article...
...Reverse discrimination lawsuits are expensive, and difficult to win...
...It is tempting to respond in kind to such invective...
...And why not...
...But defiance is no less pervasive in government contracting, where the Croson decision provides quite explicit guidelines for state and local officials...
...In short, reverse discrimination plaintiffs and advocates of colorblindness are learning a lesson the NAACP learned in the 1960s: Almost no court ruling can prevent public officials from playing race games if that is what they want to do...
...But the authors of the administration report that staked out this position declared themselves unable to find any evidence of any quota or reverse discrimination anywhere in the panoply of federal programs...
Vol. 1 • December 1995 • No. 15
