Affirmative action operates on a presumption of collective grievance. Even if individuals within a privileged class – e.g., whites – haven't disparaged the rights of nonwhites, the argument goes, they still owe their good fortune to past acts of discrimination imposed by their own. All white success, in this view, in some measure is a legacy of injustice. Affirmative action has succeeded over the years because members of putatively privileged groups, especially white males, have been made to feel a strong sense of guilt. Under this new regime of rights, an employer, contractor or college can't simply be race-neutral in its decisions; it also must take proactive steps to boost its percentage or numerical representation of underserved groups to a level that authorities deem appropriate.
Into this morass has stepped the Congressional Research Service. The CRS is a nonpartisan research shop on Capitol Hill, a division of the Library of Congress. Its new monograph is couched in dry language. And on the issue of affirmative action, it is neither "pro" nor "anti." But the findings are exceptionally useful all the same, documenting how far federal program design and administration have incorporated affirmative action, regardless of which party holds power. The study's authors, Jody Feder, Kate Manuel and Julia Taylor – respectively, a pair of CRS legislative attorneys and a CRS law librarian – sought to catalog race, ethnic and gender preferences according to federal agency or program category. Using LEXIS/NEXIS and WESTLAW data searches, they developed a list of individual items, accompanied by a brief description.
What follows is a tally of the number of programs, by agency/program area, that are required or encouraged by federal law. The list is not comprehensive. The authors admitted they had to exclude most regulations and executive orders, plus general anti-discrimination statutes (e.g., Title VI of the 1964 Civil Rights Act) that don’t mandate racial, ethnic or gender preferences per se. What did make the cut were "any statutes found during the course of our research that appear, in any manner, to prefer or consider race, gender, or ethnicity as affirmative factors in federal employment, in the award of federal contracts, or in granting any federal benefit to individuals or institutions." This included laws directed to “socially and economically disadvantaged” individuals, groups and institutions, a term that even the authors admitted is a proxy for beneficiaries of affirmative action. Here is the breakdown:
Program Category/Number of Programs Government-wide - 12 Agriculture - 32 Banking - 17 Commerce - 7 Communications - 6 Defense - 18 Education - 41 Energy - 8 Environment - 3 Health and Human Services - 53 Homeland Security - 8 Housing and Urban Development - 6 Immigration and Naturalization - 1 Interior - 6 Internal Revenue - 1 Justice - 4 Labor - 5 Office of Personnel Management - 6 Science and Technology - 11 Small Business - 9 State Department and Foreign Affairs - 9 Transportation - 7 Veterans Affairs - 6 Total - 276
Here are a few examples of affirmative action mandates, as worded in the CRS report:
Banking. 12 U.S.C. Sec. 635a-4: Requires the Board of Directors of the Export-Import Bank to attempt to ensure that a major share of any loan guarantee ultimately serves to promote exports from small, medium-size and minority businesses or agricultural concerns.
Education. 20 U.S.C. Secs. 1051 et seq.: Provide a range of assistance to institutions of higher education that serve high percentages of minority students.
State Department and Foreign Affairs. 22 U.S.C. Sec. 3922a: Requires the head of each agency utilizing the Foreign Service personnel system to develop a plan to significantly increase the number of members of minority groups and women in the Foreign Service in that agency, with particular emphasis on mid-level positions.
One could go on, but the point should be clear: Federal law almost reflexively now operates on an assumption that mandatory racial, ethnic and sexual diversity is necessary, for government and for the nation as a whole. Democrats in Congress and the White House may lean on federal agencies harder than their Republican counterparts in order to meet standards, but neither party, save for a brief moment in time, has made any real attempt to challenge the assumption.
That brief moment in time occurred during the afterglow of the 1994 congressional elections which saw a major Republican pickup of seats in the House and Senate. On December 22, 1994, Sen. Bob Dole, R-Kan., sent a letter to the American Law Division of the Congressional Research Service requesting “a comprehensive list of every federal statute, regulation, program, and executive order that grants a preference to individuals on the basis of race, sex, national origin, or ethnic background. Preferences include, but are not limited to, timetables, goals, set-asides, and quotas.” The CRS obliged him soon enough. On February 17, 1995 it sent Dole’s office a list and accompanying brief descriptions entitled, "Federal Laws and Regulations Establishing Preference Based on Race, Ethnicity or Gender (1995)."
The list, like the more recent one, was the product of several searches of LEXIS/NEXIS and WESTLAW legal databases. The categories were somewhat different from the more recent report, but results indicated that racial, ethnic and gender favoritism already by then had become bloodlessly incorporated into the federal regulatory apparatus. Here was the breakdown:
Program Category/Number of Programs Federal Acquisitions – General - 4 Agriculture - 15 Banking - 10 Commerce - 5 Communications - 6 Defense - 7 Education - 28 Energy - 7 Environment - 5 General Services Administration - 3 Health and Human Services - 8 Housing and Urban Development - 9 Interior - 9 Labor - 7 NASA - 2 Small Business - 4 State Department and Foreign Affairs - 3 Government Procurement Agreements - 6 Transportation - 6 Veterans Affairs - 2 Other - 3 Equal Opportunity Laws - 11 Federal Regulations - 12 Total - 172
Comparing the total for this list with the new one, the number of federal mandates for racial, ethnic and gender "diversity" has risen by about 60 percent. The areas of "Agriculture," "Defense," "Education" and especially "Health and Human Services" have witnessed especially rapid growth in directives.
To stem this tide, Sen. Dole and Rep. Charles Canady, R-Fla., in July 1995 introduced legislation, the Equal Opportunity Act, to bar the use of affirmative action criteria in all federal laws and programs. Dole, Canady and other supporters of the bill were subjected to a torrent of criticism that they were insensitive toward racial minorities and women. With President Clinton increasingly giving signs he would veto the bill, backers quickly lost their nerve and withdrew their support.
It wasn’t as if there was all that much nerve in the first place. An anonymous Republican staffer at the time put it this way: "Republicans have been ambivalent from the beginning about Dole-Canady. So this is not a surprise." Affirmative action critic Clint Bolick, then-Vice President of the Washington, D.C.-based nonprofit legal group, the Institute for Justice, was more direct: "The Republican leadership has consistently been terrified of this issue for unknown reasons."
Actually, the main reason for the terror was obvious, if unspoken: Whites in power don't want to be known as "racists." The power of that word to define a public figure's legacy has become the ultimate political card, regardless of party. Even the two black House Republicans, Gary Franks (Connecticut) and J.C. Watts (Oklahoma), declined to lend support. Who within the Republican Party wanted to anger them?
Supporters of the Dole-Canady legislation reintroduced a stripped-down bill in 1996 that would have applied only to federal contracting, but that, too, went nowhere. Dole distanced himself from the measure once he left the Senate to become a full-time candidate for president. Further undercutting his credibility was his selection of former New York Republican Congressman and HUD Secretary Jack Kemp, an unabashed affirmative action enthusiast, as his vice-presidential running mate.
If opponents of affirmative action in Congress went wobbly, in California, at least, they did not. In 1996, opponents placed a statewide initiative on the November ballot to amend the state constitution known as the California Civil Rights Initiative, or simply Proposition 209. Drafted by two white academicians, Glynn Custred and Thomas Wood, and chaired by a Sacramento-based land use planning consultant, Ward Connerly (a mixed-race black), the measure sought to ban preferential treatment by race, ethnicity or sex throughout the state in public employment, education and contracting. Voters approved Proposition 209 by nearly 55 percent to 45 percent. Defenders of affirmative action promptly went to court to block the law from taking effect. They eventually failed, but not without injecting enormous uncertainly into the enforcement process. In August 2010, nearly 14 years after passage, the California Supreme Court ruled, for the second time, that Proposition 209 was constitutional. Connerly would lead similar efforts in Washington State (Initiative 200) and Michigan (Proposal 2). Here, too, voters approved measures banning affirmative action mandates in state law, only to see implementation delayed or otherwise undercut by lawsuits and political pressure by quota supporters.
Affirmative action, at bottom, represents a radical redefinition of rights. It focuses not on an individual’s desire to be free from acts of aggression or fraud, but on whole classes of persons allegedly denied opportunity to realize arbitrarily determined social and economic outcomes. The latter vision holds that inter-group inequality, by its nature, is a product of injustice and thus is in need of forcible redress. This redefinition has triggered a growing State, which in turn has created an official means of stigmatizing innocent persons and institutions. Opponents of affirmative action do have one ace in the hole: It is unpopular. More to the point, it is deeply unpopular among whites, even if they fear the consequences of fully verbalizing their thoughts. Christopher Caldwell, writing in Time magazine (June 8, 2009) on President Obama’s nomination of affirmative-action supporter Sonia Sotomayor to the Supreme Court, recognized the concept's capacity to antagonize:
Affirmative action has been a revolution in American rights and in our ideas of citizenship. To judge from almost all polls and referendums over the past few decades, it is reliably unpopular. Judges prop it up. Since the election of the first black President, it has been a shoe waiting to drop. The rationale it rests on – that minorities are cut off from fair access to positions of influence in society – has been undermined, to put it mildly. Elevating a hard-line defender of affirmative action is thus a provocation in a way that it would not have been in years past.
Yet if affirmative action is more indefensible than ever, that it doesn't mean it was ever defensible in the first place. Harvard sociologist Nathan Glazer, in his 1975 book, Affirmative Discrimination: Ethnic Inequality and Public Policy, the first full-length treatment of the subject from a critical standpoint, explained the impossibility of enlisting all of society to accurately make amends for group grievances:
Compensation for the past is a dangerous principle. It can be extended indefinitely and make for endless trouble. Who is to determine what is proper compensation for the American Indian, the black, the Mexican American, the Chinese or the Japanese American? When it is established that the full status of equality is extended to every individual, regardless of race, color, or national origin, and that special opportunity is also available to any individual on the basis of individual need, again regardless of race, color, or national origin, one has done all that justice and equity call for and that is consistent with a harmonious multi-group society.
Supporters of affirmative action view harmony as something within reach only until all population groups achieve equity. That this goal is neither possible nor desirable is a possibility they refuse to fathom. Their ceaseless insistence upon enforced social outcomes has been realized in an obsessive federal bureaucracy backed by the will of Congress. The Congressional Research Service once again has performed a public service by cataloging this obsession.
Carl F. Horowitz is director of the Organized Labor Accountability Project of the National Legal and Policy Center, a Townhall.com Gold Partner organization dedicated to promoting ethics in American public life.
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