The New Color Line
\doc\web\97\01\colrbind.txt Review of The New Color Line: How
Quotas and Privilege Destroy Democracy , by Paul Craig Roberts and
Lawrence M. Stratton, Washington, D: Regnery, 247 pages, $24.95
Quotas and set-asides may create the illusion of a just, equal
society, but do little to actually implement it.
Date sent: Tue, 21 Jan 1997 19:45:25 -0500
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>From Harvey Rosetti
By David E. Bernstein
The New Color Line: How Quotas and Privilege Destroy Democracy , by
Paul Craig Roberts and Lawrence M. Stratton, Washington, D: Regnery,
247 pages, $24.95
The New Color Line: How Quotas and Privileges Destroy Democracy is a
provocative but frustrating book. The heart of the book is a
well-researched history of how civil rights litigation and legislation
ultimately led to today's ubiquitous racial quotas and preferences. No
boring academic tome, The New Color Line is well-written and concise.
It is likely to be the leading conservative study of affirmative
action for some time.
But even though the book is often insightful, it suffers from many of
the flaws typical of conservative critiques of affirmative action.
First, the authors fail to acknowledge at appropriate points America's
history of oppression of racial minorities, particularly blacks.
Second, the authors never discuss what would replace affirmative
action. Third, the authors exhibit some confusion as to why they o
ppose affirmative action. Is it, as the title of the book implies,
because affirmative action "destroys democracy"? Or is it, as the
authors sometimes suggest, because affirmative action creates special
privileges that destroy the liberal order? Or perhaps , as the authors
argue in one chapter, civil rights laws that apply to private parties
violate individual liberty, whether or not they are accompanied by
Paul Craig Roberts and Lawrence M. Stratton initially focus on the
argument that affirmative action subverts democracy. According to the
authors, the assault on democracy began with the 1944 publication of
Swedish economist Gunnar Myrdal's treatise on the state of black
America, An American Dilemma. Myrdal's book, a true masterpiece because
of the prodigious research effort that produced it, put the
neglected issue of the outrages suffered by black America in the
forefront of the liberal agenda. But the book concluded on a
pessimistic note: As a practical matter, segregation was too popular
to be ended democratically.
Roberts and Stratton vigorously dispute this point, and contend that
segregation was on its way out through democratic processes by the
late 1940s. That may be true, but the authors fail to recognize that
from Myrdal's 1944 perspective, America's recent history with regard
to racial and ethnic minorities gave him no cause to be sanguine.
In addition to the day-to-day apartheid faced by blacks in the South,
Japanese Americans were imprisoned in military internment camps;
American Indians were, for lack of a better term, still being
oppressed on their reservations; Chinese Americans were forbidden to
marry whites in California, Oregon, Idaho, and other states; and the
United States government, refusing to fill even the pitiful Eastern
European quotas allowed under the discriminatory 1924 Immigration Act,
was keeping its doors firmly closed to Jewish refugees from the Nazi
Roberts and Stratton do, however, present a persuasive case that An
American Dilemma influenced the Supreme Court's decision to ban public
school segregation in Brown v. Board of Education in 1954. The authors
argue that Brown was a serious mistake for two major reasons: It
retarded the democratic process, which would ultimately have resolved
the segre gation issue; and it was in clear conflict with the
intentions of the framers of the 14th Amendment, who never would have
dreamed that the Equal Protection Clause banned school segregation.
Ultimately, according to the authors, Brown discredited both democracy
and strict adherence to the Constitution among judges and legal
But the emphasis on Brown's anti-democratic tendencies begs the
question of whether the South, especially the Deep South, was truly
democratic before the Voting Rights Act was passed in 1965 and the
black masses finally were able to exercise the franchise. In fact,
Roberts and Stratton never consider this issue.
Moreover, the United States is not a democracy but a constitutional
republic. The authors give short shrift to legitimate
arguments--admittedly not made by the Supreme Court in Brown --that
school segregation was a violation of the 14th Amendment's Equal
Protection clause. The concept of equal protection, properly
understood, dates back to the Jacksonian era and beyond. Ac cording to
this tradition, "class legislation" favoring one group of citizens
over another is prohibited.
School segregation as practiced by the Southern states was clearly
class legislation favoring white children over black children. The
Supreme Court could not rely on the anti-class legislation tradition
in Brown, however, because during the Roosevelt era the Court had
rejected it in favor of a policy of judicial restraint. On the other
hand, a heavy dose of Myrdal--along with postwar revulsion at Nazi
Germany's racial policies and the Cold War imperative of improving
America's image abroad--persuaded the justices that state-sponsored
segregation had to be ended immediately. The upshot was Brown, correct
in its result but incoherent from a legal standpoint. The authors note
that Brown quickly became a liberal icon, giving judges the authority
and confidence to engage in judicial activism regarding racial issues.
Nevertheless, the authors exaggerate the case's significance when they
claim that Brown led to "rule by judges."
That dubious honor belongs to the relatively obscure case of Shelley
v. Kraemer, decided by the Supreme Court in 1948. In Shelley, the
Supreme Court held that court enforcement of racially discriminatory
restrictive covenants violates the Equal Protection Clause. This
ruling came despite the undisputed fact that any American citizen,
white or black, had the equal right to make and enf orce a racially
restrictive contract. What the Court found objectionable was not
discriminatory government action, but private discriminatory
preferences. Shelley marked the beginning of the emergence of civil
rights as an aggressively statist ideology. By the early 1960s, the
primary goal of liberal judicial activists had shifted from Brown's
emphasis on obliterating state-sponsored racism to Shelley's emphasis
on conquering de facto segregation and private discrimination.
In 1965, influential United States Court of Appeals Judge Skelly
Wright argued in favor of a judicially imposed merger of urban and
suburban school districts, regardless of whether there was any
evidence of intentional discrimination by school authorities. The
purpose of this proposal was to overcome de facto public school
segregation arising out of residential patterns in the private housi
ng market. The scope of Wright's proposal is breathtaking. Not content
with mere integration, Wright argued that each school in the merged
districts must have a proportionate distribution of black and white
Wright's plan makes the judicial abuse s that Roberts and Stratton
cite--limited intra-city busing, federal takeover of the Kansas City
school system--seem quite timid by comparison. Perhaps the real story
is not that Americans are ruled by judges, but that we barely escaped
absolute judicial c ontrol. In 1974, four of the nine justices on the
Supreme Court voted to require states to merge their urban and
suburban school districts. Had Hubert Humphrey been elected in 1968,
the Supreme Court would have had three extra liberals and would likely
have implemented Wright's scheme.
While judges have exercised only limited control over American life,
civil rights laws have intruded dramatically on civil society,
beginning with the 1964 Civil Rights Act, which prohibits
discrimination in the public and private sector. In discussing the
Civil Rights Act, Roberts and Stratton briefly abjure democracy and
turn libertarian. Although they never explicitly oppose the act, the
authors condemn its restrictions on private behavior for violating
freedom of conscien ce. They applaud the prescience of Milton
Friedman, Robert Bork (who has since recanted), and Barry Goldwater,
all of whom opposed applying civil rights laws to cover private
discriminatory behavior, but supported restrictions on discriminatory
Roberts and Stratton point out that "Goldwater was an integrationist,
but he appreciated the distinction between public and private that the
preoccupation with quotas had obscured." Ironically, the authors' own
preoccupation with quotas obscures any further discussion of the
public-private distinction in The New Color Line , and the libertarian
tone of the chapter on the Civil Rights Act soon vanishes.
Instead, the authors return to their focus on democracy. Roberts and
Stratton do a truly masterful job of proving that the Civil Rights Act
was intended to prohibit all forms of discrimination, including
reverse discrimination. They then explain how bureaucrats and judges
nevertheless managed to institute a quota regime under the act. As is
true throughout the book, the authors provide a wealth of interesting
and often amusing detail to support their analysis. For example, the
authors report that Alfred Blumrosen, the first compliance chief of
the Equal Employment Opportunity Commission, steered the agency toward
enforcing quotas. Why did Blumrosen have a free hand? Because the
first chairman of the EEOC, Franklin D. Roosevelt Jr., spent most of
his time yachting. Staffers sang "Franklin's Away" to the tune of
"Anchor's Aweigh" during his many prolonged absences.
Contrary to the authors' views, however, it seems that bureaucratic
and judicial support for affirmative action did not "destroy"
democracy, but simply anticipated it by a decade or two. In a series
of Supreme Court decisions in 1989, the Court returned to the original
intent of the civil rights laws and reined in affirmative action. Two
years later, however, George Bush signed the Civil Rights Act of 1991
into law, and racial preferences once again became the law of the
Roberts and Stratton clearly oppose the 1991 act, and other
affirmative action schemes, but do not state what alternative they
support. Perhaps the authors could not agree, which would explain why
the book's position on the desirability of the 1964 act's prohibitions
on private d iscrimination is muddled. Or perhaps they would both join
most conservatives in supporting a strict, neutral civil rights law,
under which whites would have the same right to sue for discrimination
as minorities. Whites would be able to win lawsuits based on indirect
and statistical evidence of discrimination, as protected minorities do
Under such a regime, employers seeking to avoid lawsuits would begin
to hire workers based purely on objective credentials. Not
coincidentally, blacks and members of other relatively impoverished
and less-educated groups have fewer formal credentials than whites.
Hence, neutral civil rights laws steer employers away from giving
applicants with inferior paper credentials a chance. Blacks,
Hispanics, and American Indians are therefore probably better off
without civil rights laws than with harsh, neutral laws that do not
permit affirmative action.
It would be possible to mitigate this result by allowing people to win
civil rights lawsuits only when there is direct evidence of blatant
discrimination. Back in 1964, many supporters of the Civil Rights Act
seemed to have this kind of regime in mind. Within a few years,
however, blatant, open discrimination of the (once common) "No Dogs or
Jews allowed" variety had disappea red almost entirely. Today, even if
the civil rights laws were all repealed, this type of discrimination
would be unlikely to reappear except in very isolated pockets.
Civil rights activists are therefore correct when they accuse
conservatives who oppose affirmative action of essentially opposing
civil rights laws. The only types of civil rights laws that apply to
private conduct that conservatives can support would either actually
harm minorities, or would be almost wholly ineffectual. The debate
over affirmative action would be far more honest if both civil rights
activists and conservatives would acknowledge that truly neutral civil
rights laws are simply not a viable option.
The answer, however, is surely not state-imposed racial preferences.
Roberts and Stratton, to their credit, recognize that
government-mandated preferences are not simply a threat to white
males, but to the liberal order as a whole. As the authors explain,
the Western world has progressed over the centuries from a feudal
order, in which a person's rights depended on his status, to a liberal
one, where each individual is equal under the law. Racial preferences
bring us back to a society based on status.
The authors are also correct in noting disturbing similarities between
modern left-wing thinking on race and the ideology of perhaps the most
illiberal regime in history, Nazi Germany. (But they undermine their
point by drawing hysterical parallels between the rise of
anti-semitism in 1930s Germany and what they call the "systematic
delegitimization of the white male" in contemporary America.) The
modern American left is obsessed with racial identity and origin.
Left-wing academics promote the idea that one's ethnic origins
determine both what a person thinks and how much value society should
attach to those thoughts.
Even more troubling, like other totalitarians, left-wing racialists
encourage reliance on emotions and feelings, leaving many affirmative
action activists seemingly utterly impervious to reason. When I was a
first-year student at Yale Law School, left-wing students organized a
student "strike" for one day to promote "diversity." One student
speaker expressed her outrage that a white classmate declined an
invitation to attend a "Women of Color and the Law" meeting. The
classmate stated that as a white woman she was not "of color," and
would therefore not be welcome. Reasonable? Not to the outraged
speaker. She proclaimed that the white student was being racist
because she saw whites as being of neutral pigment, while everyone
else was "of color."
No one in the large crowd seemed to notice that it was the minority
students who had designated themselves as being "of color" in the
first instance. The glassy-eyed crowd's response to the speaker's
inane blather was to applaud wildly. I witnessed the same reaction to
several equally moronic speeches throughout the day. I went home very,
In the long run, the ultimate victims of racialist thinking are likely
to be America's traditional scapegoats, blacks, who continue to be
vulnerable to political demagoguery because of their high degree of
social separation from dominant white America. Roberts and Stratton,
however, myopically suggest that racialist thinking might lead to an
outbreak of violence against white males.
In fact, white males have held, hold, and will continue to hold for
the foreseeable future a dominant position in American society.
Affirmative action itself, in fact, is a creature of elite white
males: senators, congressmen, presidents, Supreme Court justices,
cabinet officials, university presidents, corporate CEOs, and so on.
Elite white males could also end it any time they wanted to.
The reasons that they have not done so, it seems to me, is first, that
affirmative action allows elite white males to show their concern for
minorities by imposing costs on other, less powerful white males.
Thus, incumbent tenured professors do not resign their own positions
to make room for affirmative action candidates, but instead limit the
job opportunities of young scholars who happen to be white males.
Second, affirmative action is the easy way out, tokenism at its worst.
While my classmates at Yale spent hours and hours of time and energy
pressing for more minority representation on the faculty and in the
student body, thousands of poor black New Haven youths were trapped in
horrible social conditions, surrounded by crime, and failed by the
public school system. Few of them graduated high school, much less got
a chance at attending law school.
The protesters eventually persuaded the faculty to award tenure to an
obscure black professor who had published next to nothing. Would it be
churlish of me to suggest that the law school would have struck a far
greater blow for equality if it had donated the present value of this
professor's future salary (which I would conservatively estimate at $3
million) to tutoring programs for local New Haven youths who are
interested in becoming attorneys?
Affirmative action, then, should be ended not only because, as Roberts
and Stratton argue, it violates individual rights, conflicts with a
healthy civil society, discriminates against white males, and creates
opportunities for government mischief-making, but because it distracts
people of goodwill from confronting the real racial problems facing
the United States. Quotas and set-asides may create the illusion of a
just, equal society, but do little to actually implement it.
David E. Bernsteinis an assistant professor at the George Mason
University School of Law.