Affirmative Action and the Black and Tan Fantasy
Tell, David
Affirmative Action and the Black and Tan Fantasy By David Tell Barnstorming high above Congress in the limitless political sky of his State of the Union, his white scarf trailing in the warm wind...
...They have technical reasons...
...After all, affirmative action is difficult enough to justify as it is...
...It is that kind of public scrutiny this year's Republican presidential campaign would do well to ensure...
...Those programs were not originally designed to make specific minority victims "whole...
...Discrimination is practically impossible...
...If it isn't, if existing "Black" and "Hispanic" groupings grow murky and diluted, then civil-rights litigation and federal contracting set-asides intended for their benefit will become harder to justify...
...Can Bill Clinton float through a nine-month reelection campaign on the wispy vapors of philosophical self-portraiture, without answering more than occasional specific questions about actual governance...
...In order to win Defense Department work, in other words, non-minority businesses will have to underbid the field by a comparable amount...
...By hiding them from public view...
...Federal procurement is a hard-and-fast matter of blind, low-dollar bidding...
...Remind yourself: It's only a movie...
...His rickety "big government" turboprop spins out of sight...
...It is governance, too, governance that leaves an unmistakable trail of daily evidence...
...But still it continues, despite OMB's admission that most of the federal agencies using racial and ethnic data oppose any alteration of existing categories...
...There is another, cruder and more political reason why the president's agency appointees-along with their outside allies in mainline civil-rights organizations-oppose any revision of Directive No...
...But nothing in the law formally obliges him to, and "our base would go nuts" if he did, as an anonymous senior Clinton administration official acknowledged last year...
...Can't have that...
...Some number of Americans now classified as "Black" or "Hispanic" would presumably opt for the new category, and the discrete racial and ethnic classifications so central to the federal preference regime would then finally begin to melt away...
...So it is struggling to decide how and whether to revise Statistical Directive No...
...Even where the specific set-aside program at issue in Adarand is concerned, the Clinton Justice Department claims it needs another three to six months of internal review before it can proceed...
...Other laws do that...
...Better the choice be left in government's hands...
...A race-fixated federal bureaucracy is just one example...
...Such audacity and skill...
...Bill Clinton is the executive branch...
...Allowing a "multiracial" response to the Census would tend to undermine affirmative action...
...Bill Clinton is uniquely qualified by temperament and experience to pull off such political fakery He ran traditionalist Arkansas this way for 12 long years, talking a good, sort-of-conservative game while diligently doubling the size of that state's government...
...He still supervises a very big government...
...All competing "white male" businesses will have a full 10 percent added ex post facto to their regular proposed fees...
...Faced with this development, a "responsible" president would scuttle his government's affirmative action programs and (maybe) try to start from scratch...
...In a landmark case last summer (Adarand v. Pena), the Supreme Court ruled that federal minority-preference programs no longer pass muster unless they a) are conducted on behalf of identifiable, proven victims of discrimination, and b) involve a remedy that is provided directly by the discriminating party itself...
...Who, me...
...Last October, the White House leaked a front-page Washington Post story about how the Pentagon was abandoning its "rule of two," a flat-out minority set-aside policy which reserved defense contracts for "small disadvantaged businesses" whenever at least two such firms had placed a bid...
...Questions concerning race, for example, a subject unmentioned in the State of the Union...
...The chart would be a comprehensive color wheel of numerically identified skin tones, against which each Census respondent's flesh might be judged...
...So instead, the White House has decided largely to ignore the Supreme Court and to quietly delay or thwart Adarand's effects wherever possible...
...The ploy infuriates and worries Republicans...
...How will Republicans ever top that...
...Guess what...
...It may dispense with racial and ethnic categories altogether and employ something called a Skin-Color Gradient Chart instead...
...Instead, affirmative action has become a permanent, regular, free-standing function of government social and economic policy, one that presumes the "victimization" of favored minority groups without ever bothering to prove it, case by case...
...The president's Office of Management and Budget is troubled by complaints made on behalf of what it provisionally calls "multiracial persons...
...The answer will involve what OMB's Sally Katzen calls a "substantively complex and humanly sensitive journey...
...Affirmative Action and the Black and Tan Fantasy By David Tell Barnstorming high above Congress in the limitless political sky of his State of the Union, his white scarf trailing in the warm wind of recent poll results, the president makes an unassisted plane-to-plane transfer...
...Administration officials cited in the Federal Register view this prospect with barely concealed disdain and alarm...
...And he will do so with great public fanfare...
...In any case, the "rule of two" was abolished for a practical, not theoretical reason: A federal trial court in New Mexico was about to abolish it anyway...
...So there is no conceivable constitutional justification for the use of affirmative action here, a simple fact that the administration pretends it can't figure out...
...His Washington audience gasps with delight and admiration...
...Which plainly means that virtually every existing such federal program is now presumptively unconstitutional...
...Yeah, right...
...Liberal...
...From this 1977 document, which standardized federal record-keeping on matters of race and ethnicity, come the familiar, strictly limited categories: Black, White, Hispanic, Asian or Pacific Islander, and American Indian or Alaskan Native...
...They should worry less and get on with their business...
...Needless to say, lots of Americans do not fit these categories neatly...
...And the Fifth and Fourteenth Amendments do not abide such groupthink, according to the court...
...And because he remains a Democrat, and dependent on Democratic votes, the president must protect those obsessions as best he can...
...A change of terms might damage the historical continuity of government data...
...Any American inclined to switch categories deludes himself about his victim status: "The perception of others is more valid for evaluating discrimination than individual self-identification...
...A project heavy with potential political embarrassment, you would think...
...Things should not be so easy for Clinton in 1996...
...He managed his 1992 presidential race this way, too, squirting away like thermometer mercury every time a finger of ideological accusation touched him...
...Big money was involved: $1 billion a year...
...The 1990 Census counted at least 4 million children of mixed-race couples, children on whom the government now affixes an obviously arbitrary label...
...A December Federal Register notice reveals that the Pentagon will now grant a previously unused "bid preference" to any such minority concern...
...And this particular executive branch has established-and is still busily accumulating-a voluminous record of ideologically fraught activity that belies his current rhetorical disguise...
...The presidency is more than an Oval Office communications strategy...
...But what shall this new label be...
...Largely unnoticed outside the specialty press, the Clinton administration still plays feverishly in the ugly mud of race-conscious national policy...
...According to an August 1995 notice buried in the Federal Register, serious options range from the startlingly retrograde "mulatto" to the cosmically contemporary "TIRAH," which stands for "Tan InterRacial American Humankind...
...And suddenly a daredevil Bill Clinton is standing safely on the sleek new wings of "self-reliance...
...And if mere words like these ultimately prove uselessly subjective, the administration has another taxonomic arrow in its quiver...
...And such a chart also "requires precise, multi-color printing" of government forms, which would be expensive...
...They deserve a better one, advocates say...
...There are many others, none of which can any longer bear public scrutiny in the new, post-big-government America President Clinton wants to lead for another four years...
...Only when he is backed against the wall by a direct court challenge will President Clinton concede an isolated, particularly indefensible affirmative action mechanism...
...And his State of the Union signaled conclusively that he now plans to run for reelection in much the same style, muddying the campaign choice into two highly abstracted brands of the same, essentially conservative product: the GOP's frighteningly aggressive one, and his own cautious and caring version...
...Can he do it...
...Back home at the White House after the show, President Clinton is confronted by unpleasant real-world facts...
...Some of it still will be...
...Which, in many or most cases, will make their bids unprofitable-and pointless...
...There is no meaningful legal distinction between the discarded "rule of two" and this bid preference...
...His party's strikingly unpopular ideological obsessions still crowd that government's hallways and offices...
...The skin-tone chart, in particular, might produce future statistical perversions, since "individuals could change skin colors over a lifetime as a result of exposure to sunlight or disease...
Vol. 1 • February 1996 • No. 21
