You Won't End Racism With Shallow Bromides

How would you describe the following statements:

• The way to stop deficit spending is to stop deficit spending.

• The way to stop the civil war in Syria is to stop the civil war in Syria.

• The way to stop overfishing in the ocean is to stop overfishing in the ocean.

• The way to stop climate change is to stop climate change.

• The way to stop our nation's dependency on foreign oil is to stop our nation's dependency on foreign oil.

Are any of those observations helpful? Useful? Insightful? Or are they banal? Circular? worthless? Mindless repetition unworthy of the label, "tautology"? How about this one:

• The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.

I was reminded of that statement, made by Justice Roberts in opposition to the continuation of affirmative action, when Will Cain recited the line on Real Time as if it were a magic bullet solution to our nation's history of racial strife. (They way to stop talking heads from saying foolish things on television is to....)

Jim Lindgren provided a brief, albeit incorrect history of that assertion here, in a statement that I believe crystallizes the thinking of people like Roberts and Cain,

As general background on the history of the nondiscrimination ideal, the best place to start is Andrew Kull's prize-winning The Color-Blind Constitution (Harvard Press). Kull details the rejection of the color-blind version of the 14th Amendment in favor of what was viewed at the time as the weaker and less radical version that was adopted. And he details the rejection of color-blindness, just a few years after a consensus was finally reached in 1964 that American law was to be color-blind. His last main chapter describes the shift away from color-blindness toward what Justice Brennan called "benign racial sorting." In the course of that chapter he describes the idea that the special contribution of American law to reducing discrimination might be to embrace nondiscrimination.

There was nothing in the "less color-blind" version of the 14th Amendment that became the law of our land that compelled our nation to adopt legalized segregation, a doctrine of "separate but equal" that was anything but equal, anti-miscegenation laws, Jim Crow laws and the exclusion of minorities from certain jobs and educational opportunities based upon the color of their skin. There is nothing "color blind" in a body of law that explicitly divides the population based upon skin color and excludes one set of people from superior services available to the other. There is nothing "color blind" in declaring that formalized inequality to be permissible equality. You would have to be blind to history to not recognize "separate but equal" as a sham.

Lindgren is correct that the notion of the "color blind constitution" was rejected as we entered the civil rights era. What he fails to accurately describe is that the notion that the constitution should be "color blind" came in the wake of the civil rights movement, and that the argument was championed by people who had opposed the end of segregation. Why would advocates of segregation and Jim Crow call for a "color blind" constitution? Because they wanted to tie the government's hands in its implementation of remedies. It is that history that lives on in the remarks of Justice Roberts - not explicitly, but in the form of an echo. Roberts can reflexively issue a platitude, and the heirs to the Southern Strategy reflexively cheer, never mind the history.

Lindgren notes,

The idea that the best way to end discrimination is to stop discriminating was a common idea by at least the Reagan Administration.

And quotes Bill Bennett, then Secretary of Education,

What steps do you think should be taken to eradicate racial prejudice and discrimination? What steps should be taken, I guess, are the ones I laid out in my letter to the Equal Employment Opportunities Commission. That is, we should stop discriminating on the basis of race, sex, religion, and origin. Stop, stop, stop. That's where everybody wants to go. The best way to get there is to get there--that is, to stop. You do not eradicate an unfortunate legacy by perpetrating another unfortunate legacy.

You known, "Shucks, what an awful history, but it would be terrible to impose remedial measures." Case closed, we now return you to your original programming, "Welfare queens and young bucks who buy T-bone steaks with food stamps."

Admittedly, affirmative action has always worked better in theory than in practice. The name is born of the theory - the concept of the government taking affirmative action to end racism. But what action can the government take to even the playing field. To overcome generational disadvantage. The conceit of Justice Roberts is that the nation can be viewed as a single actor - and thus, that if the government becomes truly color blind, everybody will be truly color blind. Discrimination will end and we'll all wear Benneton and sing songs about Coca Cola.

But the world is not that simple, and the government was trying to act to prevent and correct a history of private discrimination through public measures. That's inevitably going to be unfair to some people, and is inevitably going to provide a benefit to some who don't need it while denying the same benefit to others who do. There are plenty of valid criticisms that can be made of affirmative action programs, both in terms of the big picture and in terms of the details. The issue being, and the Supreme Court historically recognizing, that sometimes a deeply flawed corrective measure is better than doing nothing. And certainly that you don't eliminate racism by pretending it no longer exists.

I've commented on this before, but one of the recurring themes over at the Volokh Conspiracy, the group blog where Lindgren posts, is that affirmative action is harful to minorities. That they would be more likely to excel at school, t graduate, to earn high incomes if they went to lesser schools better matched to their assumed academic talents. But they never present that same argument about legacy admissions, nor do they apply the same reasoning to kids who are at the margins of admissions standards and get bumped down to their second choice school based as a result of affirmative action. Why would a Harvard legacy be harmed if his school said, "You don't meet our academic standards?" Why would an applicant to any school be harmed if they received the "benefit" of being denied admission to a more difficult school for which they were barely qualfied, and instead ended up in a less academically rigorous setting where they would be closer to average? The reasoning should be the same, but obviously the politics are different.

Ending affirmative action won't end racial discrimination any more than its creation started discrimination. The way to stop discriminating on the basis of race is to come up with effective mechanisms that will stop people from discriminating on the basis of race, and then to implement those solutions. If you believe racism no longer exists, then great - the last step is to eliminate race-based corrective measures. But if you know better and care about ending racism, while it's fine to say "Affirmative action is deeply flawed and we can do better," you need to at least try to define the programs you would implement in its stead or attempt to explain why you see the cure as being as bad as or worse than the disease. If you don't care, however, Roberts' quote makes for a great sound bite, doesn't it.