Days before the California primary, Bob Dole stopped at a pagoda-roofed mall in Orange County’s Little Saigon to remind voters of his support for the California Civil Rights Initiative (CCRI), the fall ballot proposition that would end state affirmative action programs. The site was chosen deliberately: Some groups, including Asian-Americans, are necessarily among the unpreferred in racial-preference programs. But the “visual” for the event said something quite different. A banner hanging behind the candidate invited viewers, in both English and Vietnamese, to “Celebrate Diversity With Bob Dole and CCRI.”
CCRI, of course, is not meant to promote “diversity” but to expose it as a fraud — the latest justification for state-sponsored discrimination. For the first time since these programs began to germinate in bureaucracies and admissions offces 30 years ago, the California initiative will give citizens a chance to vote up or down on ending group preferences, regardless of their rationale. As such, it presents a choice that many Republican elected offcials are finding more difficult to make than their constituents. For restoring the principle of colorblindness means rejecting more than “quotas” and “discrimination.” It calls for penetrating-and casting off the elaborate cloak of aliases and assumed identities under which affirmative action has learned to operate. Among other things, it means rejecting the seductive call to “celebrate diversity.”
In Ending Affirmative Action: The Case for Colorblind Justice (Basic- Books, $ 23.00), Terry Eastland argues that it is time for citizens to decide the fate of affrmative action. And he has no doubt what their choice will be: Race and gender preferences must be rejected as unfair, unjust, and un- American. Eastland’s new book continues an argument begun with much force in 1979 by Eastland and William J. Bennett in their post-Bakke treatment of affrmative action, Counting By Race. There, Eastland and Bennett discussed the concept of “moral equality,” the notion that each individual is a moral agent, accountable to himself and others and therefore capable of self-government.
In Ending Affirmative Action, “moral equality” has become “colorblind principle,” and the change is more than semantic. Where Counting by Race looked to the history of the republic and the philosophy of the founders to construct a principled case for moral equality, Ending Affirmative Action uses the stories of the people who have been victimized by racial preferences to make a populist case for colorblind justice. Their names are the stuff of federal court case law: Cheryl Hopwood, Danny O’Connor, Randy Pech, and Sharon Taxman. And by focusing on their stories, Eastland signals the coming of the final stage in the battle against race-conscious policy: the mobilization of the public.
Eastland sees populism as the force necessary to raze an edifice of affrmative action that was constructed by largely undemocratic means through executive order, bureaucratic activism, and judicial fiat. Beginning with the Johnson administration, he recounts how group preferences were pursued in government, private employment, and academe through “law enforcement that is better described as law transformation.” The law transformed was the Civil Rights Act of 1964, Eastland’s high-water mark for the principle of moral equality in American life.
The Civil Rights Act, he contends, was passed to codify the principle of nondiscrimination, not to mandate equal group outcomes. And yet, just as quickly as colorblindness was enshrined in the law, elites began to undermine it. In private employment, Title VII of the Civil Rights Act explicitly prohibits discrimination. But Eastland relates how bureaucrats hatched the ” disparate impact” theory in order to mandate the correct “utilization” of minorities, and how the courts not only ratified that goal but made it the responsibility of business to achieve it. Similarly, the Civil Rights Act makes it a crime for most colleges and universities to discriminate. Eastland explains how the Supreme Court, by allowing race as “a” factor in admissions, opened the door for race to become “the” factor.
Eastland’s most valuable contribution, however, is revealing how affrmative action has come to travel under assumed names, the most popular of which is ” diversity.” Unlike the original justification for these programs — the remediation of past discrimination against black Americans — “diversity”is a goal in and of itself; it recognizes virtually no limit on its potential ” beneficiaries,” nor any time-limit on its application. Left unchallenged, Eastland points out, it is a guarantee of the permanence of affrmative action in American life.
Eastland also recounts how race and gender politics have warped the terms of our public discourse. Supporters of group preferences often claim to eschew “hard and fast” or “rigid” quotas for “flexible goals.” In practice, Eastland points out, there is virtually no distinction. Defenders also tend to claim that most affirmative action is “voluntary.” But the truth, Eastland writes, “is that much of what is called voluntary affrmative action is in effect compelled by government or its agencies and institutions.”
Eastland finds bipartisan blame for the transformation of affrmative action into an open-ended system of preferences for a rapidly multiplying list of ethnic minorities. These programs, he writes, “advanced dramatically” under President Nixon. Ronald Reagan campaigned against preferences but did nothing to reverse them in office — partly, Eastland explains, out of fear that what he changed by executive order would immediately be restored by Democratic majorities in Congress. President Bush, of course, signed the Civil Rights Act of 1991, which Eastland contends codified a variant of the diversity rationale — the “underutilization” of minorities relative to their representation in the population — in employment.
Ending this system of increasingly open-ended, self-justifying racial preferences is the promise held out by the title of Eastland’s book. He wrote before the federal appeals court ruling in the case of Cheryl Hoiwood, which held that racial preferences at a state university are permissible only in narrow circumstances — a potentially fatal blow to state-sponsored affrmative action. Still, Eastland offers little reason to be sanguine about the likelihood that the judiciary, despite decisions like Hopwood, can alone blaze a trail back to colorblindness.
The problem, as Eastland recently told a Heritage Foundation audience, is that “judicial decisions are not self-enforcing.” He argues that Hopwood never should have come to trial at all. The two-track admissions policy that rejected Cheryl Hopwood at the University of Texas law school — one for preferred minorities and another for everyone else — had already been outlawed in the 1978 Bakke decision. But zealous college administrators maintained it as the only sure route to “diversity.” As long as this remains a goal, Eastland infers, the education establishment can be counted on to resist Hopwood as tenaciously as it resisted Bakke.
In the end, as Eastland reminds us, affirmative action is a political as well as a constitutional disease, and it is in the political realm that he places his hopes for a cure. The elections of 1994, he writes, “transformed the political landscape” and produced “the most focused, enduring consideration of [affirmative action] that we have ever had.” Paradoxically, Eastland has little faith in the ability or willingness of the GOP-led 104th Congress to sound the death knell of race-consciousness. Congressional Republicans are, he writes, divided and fearful of being cast as racist for seeking to end affirmative action without proposing an “empowerment agenda” of tax cuts and social-services deregulation to replace it.
Eastland is also silent on what role the 1996 presidential race will play in ending racial preferences. He writes approvingly of governor and then- presidential aspirant Pete Wilson’s efforts in 1995 to curb affrmative action in California but fails to consider the more salient fact: Pete Wilson’s candidacy — at the center of which was his opposition to preferences — died on the vine. As for the other contenders, Eastland dismisses them for having treated affirmative action as merely a “campaign issue.”
But will ending affirmative action merit even the dubious rank of “campaign issue” in 1996? Less than a year ago, Eastland’s faith in the potential for change in the “new politics” of 1994 seemed justified. New GOP congressional committee chairmen announced their intention to hold hearings on the Clinton administration’s enforcement of racial preferences and, in a blaze of publicity, Sen. Dole unveiled legislation co-sponsored by Rep. Charles Canady that would end race and gender preferences in government hiring and contracting. Today, the House has put aside affrmative action for the results of a leadership-appointed “empowerment task force,” and Dole-Canady is stalled, awaiting a go-ahead from the presumptive Republican presidential nominee. Republicans, it seems, have lost their nerve.
And at a most inopportune time. What Ending Affirmative Action demonstrates is that the battle over principle in affirmative action is over, and the good guys have won. The principle of moral equality captured in the words of the Declaration of Independence has survived and is experiencing a rebirth in the courts and, most especially, in the hearts and minds of the American people. Initiatives like the CCRI are springing up across the country precisely because Americans recognize the friction between what we do as a people and what we believe — and they want to do something about it.
In the closing pages of his book, Eastland seems to abandon faith in the two major parties and suggests that it may fall to a third party to bring about colorblindness. But his solution, which is never fleshed out, seems chimerical. If the political moment for ending affrmative action has arrived, it falls to Republicans to act.
They won’t get far, however, by chasing a well4ntentioned but potentially limitless “empowerment agenda” or by attempting to make colorblindness and ” diversity” coexist in the same policy. Meanwhile, it appears increasingly likely that the people will get their chance to speak, and what they say will weigh heavily on the future of affrmative action. The question left unanswered is, who will lead them?
Jessica Gavora is director of programs at the New Citizenship Project.
