The American racial and ethnic landscape has been radically transformed over the past three decades. A generation ago, blacks had much less education, much poorer jobs and were more likely to live in solidly black neighborhoods than they are today. Yet the old notion of “two societies, one black, one white—separate and unequal” still persists thirty years after it first appeared in the misguided diagnosis of the Kerner Commission report.

America’s changing racial and ethnic scene is the central theme of Beyond the Color Line. In essays covering a range of areas including education, law, religion, immigration, family structure, crime, economics, politics, and more, this volume examines where we’ve been, where we are, and where we’re going. Along the way, the authors attempt to illuminate how we have moved from Dr. Martin Luther King’s dream of all Americans being judged solely by the “content of their character, not the color of their skin” to today’s vaguely Orwellian civil rights orthodoxy—that it is necessary to treat some persons differently in order to treat them “equally.”

The product of the Citizens’ Initiative on Race and Ethnicity—formed in 1998 as an alternative to the one-sided official “dialogue” on questions of color—many of these twenty-five brief essays offer either explicit or implicit public policy recommendations. A common theme unites them—new realities require new thinking, and old civil rights strategies will not solve today’s problems. Beyond the Color Line takes the first steps toward a new civil rights agenda.

Abigail Thernstrom, a senior fellow at the Manhattan Institute and a member of the Massachusetts State Board of Education since 1995, and Stephan Thernstrom, the Winthrop Professor of History at Harvard University and Manhattan Institute senior fellow, are coauthors of America in Black and White: One Nation Indivisible (Simon & Schuster, 1997) and write frequently for a variety of journals and newspapers, including The New Republic, the Wall Street Journal, and the UCLA Law Review.

Contributors: David J. Armor, Michael Barone, Douglas J. Besharov, Clint Bolick, David Brady, Linda Chavez, William A.V. Clark, Ward Connerly, John J. DiIulio Jr., Tamar Jacoby, Everett C. Ladd, George La Noue, William J. Lawrence, Nelson Lund, Christine H. Rossell, Sally Satel, Thomas Sowell, Shelby Steele, Abigail Thernstrom, Stephan Thernstrom, Martin Trow, Reed Ueda, Eugene Volokh, Finis Welch, James Q. Wilson, C. Robert Zelnick

==============================

Foreword ix

John Raisian and Larry Mone

Contributors xi

Introduction 1

PART ONE THE BIG PICTURE

The Demography of Racial and Ethnic Groups 13

Stephan Thernstrom

Immigration and Group Relations 37

Reed Ueda

What Americans Think About Race and Ethnicity 53

Everett C. Ladd

Wrestling with Stigma 69

Shelby Steele

PART TWO PRIVATE LIVES AND PUBLIC POLICIES

Residential Segregation Trends 83

William A. V. Clark

African American Marriage Patterns 95

Douglas J. Besharov and Andrew West

Crime 115

James Q. Wilson

Health and Medical Care 127

Sally Satel

Supporting Black Churches 153

John J. DiIulio Jr.

PART THREE ECONOMICS

Discrimination, Economics, and Culture 167

Thomas Sowell

Half Full or Half Empty? The Changing Economic Status of African Americans, 1967–1996 181

Finis Welch

Discrimination in Public Contracting 201

George R. La Noue

PART FOUR EDUCATION

Desegregation and Resegregation in the Public Schools 219

David J. Armor and Christine H. Rossell

The Racial Gap in Academic Achievement 259

Abigail Thernstrom

Schools That Work for Minority Students 277

Clint Bolick

Preferential Admissions in Higher Education 293

Martin Trow

PART FIVE LAW

Racial and Ethnic Classifications in American Law 309

Eugene Volokh

Illusions of Antidiscrimination Law 319

Nelson Lund

PART SIX POLITICS

Race, Ethnicity, and Politics in American History 343

Michael Barone

The Politics of Racial Preferences 359

David Brady

From Protest to Politics: Still an Issue for Black Leadership 369

Tamar Jacoby

PART SEVEN ONE NATION, INDIVISIBLE

The New Politics of Hispanic Assimilation 383

Linda Chavez

In Defense of Indian Rights 391

William J. Lawrence

The Battle for Color-Blind Public Policy 405

C. Robert Zelnick

One Nation, Indivisible 415

Ward Connerly

Index 425

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PART FIVE — LAW

Racial and Ethnic Classifications in American Law

EUGENE VOLOKH

When does the U.S. Constitution allow government officials to discriminate based on race? This question has occupied the American judiciary for at least 130 years, and to this day it remains in considerable measure unanswered.

At least since the 1940s, courts have said that governmental race classifications— policies that sort people by racial categories—are presumptively impermissible, though acceptable if the government gives a very good justification for them. The legal rule is the so-called “strict scrutiny” test: to pass constitutional master, a race-based policy (whether it benefits whites or nonwhites) must be “narrowly tailored to a compelling governmental interest.” The U.S. Supreme Court enunciated this test as to state laws in the City of Richmond v. J. A. Croson Co. case (1989) and as to federal laws in Adarand Constructors v. Pen˜a (1995).1 But this principle was endorsed only by a five-to-four majority and is thus somewhat precarious. “Narrow tailoring” and “compelling government interest,” moreover, are such vague phrases that creative judges could use them to uphold or strike down virtually any race-based program they wish. The test’s substantive meaning must therefore come not from its words but from the decisions—again, usually ones made by narrow majorities—that apply the test and therefore implicitly elaborate it.

In determining the constitutional legitimacy of a race-conscious government policy, then, a court must answer three questions. First, does it indeed involve a racial classification? Second, is the government’s justification one that the courts have recognized as “compelling”? And, third, is the race-conscious government action “narrowly tailored,” carefully designed to target the specific problem that is said to justify the race-based policy?

When is something considered a racial classification? Courts have been close to unanimous in concluding that any different treatment based on race, whether it amounts to a quota, a “plus factor” favoring a particular racial group, or any other race-based decision making, triggers strict scrutiny. (Rigid quotas are considered especially constitutionally suspect because they are less likely to be “narrowly tailored” to whatever interest they seek to serve, though even quotas have sometimes been upheld.)2 Policies that set “goals” and “timetables” are treated like all other preference programs and must likewise face strict scrutiny.3

It is harder to tell whether racially targeted “outreach” programs will be treated as race classifications. Consider, for instance, an advertising program targeted solely at blacks and aimed at increasing the number of black applicants and therefore of black employees. On the one hand, such a program does not involve actual discriminatory treatment of any individual, which is why these programs are often popular even among those who generally oppose race preferences. On the other hand, the advertising campaign does aim to provide a certain valuable benefit (information) to people of a particular group, which is why antidiscrimination statutes have generally been read as applying to such targeted recruitment the same way that they apply to more tangible forms of discrimination.4 Few cases have addressed this question, so no consensus has emerged.

A facially race-neutral program does not become a race classification simply because it has an unintentionally different impact on one racial group than on another.5 Thus, for instance, a preference for police officers who speak Spanish is itself perfectly acceptable, unless it is proved to be a mere pretext for preferring people who are ethnically Hispanic.6 Intent, not impact, is the question. Of course, it is often hard to determine the precise intentions behind a particular rule; because of this, courts are generally reluctant to infer that a facially race-neutral rule is intended to discriminate based on race, unless there is strong evidence of such an intention.

Once a court concludes that a government program involves a racial classification, it asks whether it is narrowly tailored to a compelling government interest. Here is what the precedents tell us about what this means.

1. The desire to remedy societal discrimination cannot justify a governmental race classification; that was the Supreme Court’s holding in the Croson case.7 Thus, for instance, the University of Michigan cannot defend its race preference system by saying, “Blacks have gotten a raw deal for many generations, and are still getting it today, and our preference for blacks and discrimination against whites is a rough payback.”

2. A government agency’s desire to remedy its own identified past discrimination, or to counteract others’ identified present discrimination, does justify race-based programs that are carefully designed to compensate for this wrong. Thus, for instance, a government employer that finds it has discriminated against blacks in the recent past may set up a preference system that aims to increase black representation to roughly the level of black participation in the qualified labor pool. It doesn’t matter that this compensates black applicants against whom the employer has not discriminated at the expense of white applicants who have not benefited from discrimination at the employer’s hands—the preference for a race can indeed be justified by past discrimination against that race.8 Similarly, a government agency that shows, using statistically valid “disparity studies,” that there is discrimination by contractors against minority subcontractors may set up a preference program for contractors that use minority subs.9 On the other hand, the University of Texas cannot just say, “We discriminated against black applicants until the late 1960s, so we have to discriminate in favor of blacks today”—too much time has passed to assume that the past discrimination by the University of Texas has direct consequences for admissions now.10

For an agency to implement a preference program under this rubric, it need not have been found guilty of discrimination in court: the agency may act based on a “strong basis in evidence” that this discrimination had taken place.11 As one might guess, it is not entirely clear exactly what evidence suffices to show this.

3. The desire to have a particular racial balance for its own sake—for instance, wanting to have a university that “looks like America”—does not justify race classifications.12

4. What if a public university (or a government employer) argues that it wants to have a certain racial mix not for its own sake but for the greater “intellectual diversity” of ideas, outlooks, and experiences that such a mix would supposedly yield? This is one of the big unresolved questions. Justice Lewis Powell endorsed this argument in Regents of the University of California v. Bakke (1978), but he was the only Justice to do so. The U.S. Court of Appeals for the Fifth Circuit rejected this argument in Hopwood v. Texas (1996), but since then the Nevada Supreme Court has accepted it as applied to university faculty hiring.13

5. A university is unlikely to win with an argument that admitting more medical or law students of a particular race is narrowly tailored to the interest in providing better medical and legal services to communities of that race. Though the Court has never ruled on this specific question, it is clear that race generally may not be used as a proxy for various attributes, even when it is a statistically accurate proxy. Instead of relying on stereotypical assumptions about the skills or education possessed by members of a certain group, for instance, employers and educators must measure the skills or education of the applicants directly.14 Similarly, for future community service: schools may give preference to applicants who have track records of past community service or to people who commit themselves to engage in such service in the future, but they cannot assume that, say, blacks are more likely to go back to serve poor black communities (even if that’s a statistically sound prediction).

6. The government generally cannot justify race-based decisions by pointing to the public’s race-conscious attitudes. Thus, for instance, the government may not refuse to integrate a park for fear of racist violence. The government may not refuse to hire black policemen on the theory that some whites will reject their authority. When deciding on child custody, a court may not take into account the possibility that placing a child with a parent who has remarried across races will lead to the child’s being shunned or even attacked by his peers.15

What about similar arguments in support of preferences that help minorities? For instance, may the government prefer nonwhite teachers because nonwhite students will supposedly be more inspired by having them as role models? May the government prefer Hispanic policemen because Hispanic members of the public will trust the police more if they see more Hispanics on the force? May the government prefer black guards for a boot camp for juvenile offenders on the theory that the mostly black inmates may react better to the black guards than to white guards? In these questions, the matter is less clear. The role model justification was rejected in Croson,16 but the police and prison “operational needs” argument is more controversial. Even Judge Richard Posner, who is generally skeptical of race preferences,17 wrote an opinion upholding the preference for black boot camp guards and suggesting that the same rationale might apply to police forces.18

7. Most judges—even including Justice Antonin Scalia, who would impose a close to total ban on governmental race classifications—have accepted that in certain very narrow circumstances the government may consider race in order to avoid imminent violence. This is especially true of violence by prisoners; the law may normally refuse to give effect to public prejudices, insisting instead that the public conform its behavior to the law’s demands, but many prisoners have already shown their (often violent) unwillingness to comply with legal norms. Thus, courts have suggested that race-segregated lockdowns following prison riots may be constitutional and have upheld some race-based cellmate selections for violently racist prisoners.19

8. The strict scrutiny framework leaves room for courts to recognize still other interests as “compelling.” Thus, for instance, the U.S. Court of Appeals for the Ninth Circuit Court recently upheld a race-based admission policy at a UCLA-run experimental elementary school on the grounds that the policy was needed to have a more lifelike educational experiment.20 One can question whether the government has a truly compelling interest in such experimentation and whether an artificially integrated school in any event particularly serves this interest, given that most schools are much more segregated; but these judges bought the argument, as judges applying strict scrutiny always can. Similarly, some courts have taken the view that preservation of a child’s “cultural heritage,” or more broadly “the child’s best interests,” are compelling enough interests to justify race-based adoption policies.21

Racial classifications are thus sometimes tolerated by the U.S. Constitution as currently interpreted. It is important to note, however, that they are not required: even those classifications that are not forbidden by the U.S. Constitution may be curtailed by Congress, by state legislatures, or by the voters directly through the initiative process.22 What broader practical or political conclusions can one draw from the above?

(a) The law is vague enough that die-hard race preference supporters can implement such policies while plausibly arguing that each policy is somehow narrowly tailored to a compelling interest. A court might, several years later, strike down such a policy, but the supporters can often try again with a slightly revised policy or with a supposedly fuller factual record. Only a per se ban on preferences, or a diminution in the zeal of the preference supporters, could prevent this. Nonetheless, strict scrutiny, as applied by the courts in recent years, seems a tough enough test that more pragmatic government officials who don’t want to bother with the cost, hassle, and uncertainty of litigation may abandon their preference plans and shift to race-neutral solutions.

(b) The law’s vagueness leaves lower court judges plenty of latitude to write opinions that go whichever way they like. A few justifications—for instance, remedying historical discrimination by society at large, maintaining racial proportionality for its own sake, and providing role models— will probably have to be rejected by any conscientious judge because the Supreme Court precedent on these issues is so clear. Still, there are enough permissible (or not clearly forbidden) justifications and enough wiggleroom in “narrow tailoring” that many programs may be upheld by judges who want to uphold them. Federal courts have struck down most of the preference programs that they have faced in recent years, but this has more to do with the skepticism of the judges who have applied the doctrine than with the innate force of the doctrine itself.

(c) The Supreme Court has usually been split five-to-four on preferences. Were, say, Chief Justice William Rehnquist or Justice Sandra Day O’Connor to step down and be replaced by a more propreference Justice, the antipreference rule might well be reversed or at least undermined. The composition of the lower courts is also vital; lower court judges who are ideologically inclined to support race-based policies can exploit the law’s vagueness to uphold preferences.

(d) It is a mistake to say that the Court’s decisions establish a per se rule of color blindness. These decisions hold that race preferences are disfavored by the Constitution, but not that preferences are always illegal. To take one example, the notion that a government agency may hire black applicant X over white applicant Y today because it discriminated against black applicant Z and in favor of white applicant W some years ago is far from a color-blind approach. The Court might be wrong and the antipreferences movement might be right, but the movement must recognize the limits to how much it can base its arguments on the Court’s decisions.

(e) It is equally a mistake to argue that antipreferences initiatives are unnecessary because the Constitution already severely limits race preferences. Opponents of antipreferences initiatives (such as California’s Prop. 209) often make this argument, but it is just not so.23

Some courts continue to accept the desire for intellectual diversity as a justification for race preferences, and many government agencies continue to urge this argument; the “remedying identified discrimination” rationale is potentially quite broad; and some other justifications for racebased policies remain possibly available. Given all this, and given the number of judges (federal and state) who sympathize with race preferences, race preferences are hardly limited to any narrow, uncontroversial area. And just as important, the U.S. Supreme Court is closely split on this question and may easily reverse itself in years to come. It is therefore wise for voters who oppose race-based policies not to rely simply on the Justices but to make sure themselves that state statutes, state constitutions, and federal statutes mandate color blindness.

Notes

1. 488 U.S. 469 (1989); 515 U.S. 200 (1995).

2. See, e.g., United States v. Paradise, 480 U.S. 149 (1987) (upholding “a 50%

promotional quota in the upper ranks” of the Alabama Department of Public Safety);

Davis v. City and County of San Francisco, 890 F.2d 1438, 1447 (9th Cir. 1989) (upholding

a Fire Department quota that mandated “the hiring of minorities and women

in percentages equal to their representation in the labor market . . . and the promotion

of minorities and women in percentages equal to their representation in the relevant

labor market”); Middleton v. City of Flint, 810 F. Supp. 874 (E.D. Mich. 1993) (upholding

“a 1:1 quota” in promotions); Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir.

1995) (stating that a “20% promotion ‘floor’” based on race was constitutional); Quirin

v. City of Pittsburgh, 801 F. Supp. 1486, 1491 (W.D. Penn. 1992) (striking down a

particular quota plan, but making clear that some quotas are constitutional); North

State Law Enforcement Officers Ass’n v. Charlotte-Mecklenburg Police Dep’t, 862 F. Supp.

1445, 1457 (W.D. N.C. 1994) (same); Associated General Contractors v. City of New

Haven, 791 F. Supp. 941, 949 (D. Conn. 1992) (dictum) (same); Mallory v. Harkness,

895 F. Supp. 1556 (S.D. Fla. 1995) (same).

3. Bras v. California Public Utilities Comm’n, 59 F.3d 869, 874 (9th Cir. 1995);

Lutheran Church–Missouri Synod v. FCC, 141 F.3d 344, 352–54 (D.C. Cir. 1998).

4. See, e.g., Lutheran Church–Missouri Synod v. FCC, 141 F.3d 344, 351 (D.C. Cir.

1998) (suggesting, but not deciding, that race-based outreach should be treated the

same way as race-based hiring decisions); Eugene Volokh, “The California Civil Rights

Initiative: An Interpretive Guide,” UCLA Law Review 44 (1997): 1335, 1349–53 (discussing

this point in more detail).

5. Washington v. Davis, 425 U.S. 229, 242 (1976).

6. See, e.g., Hernandez v. New York, 500 U.S. 352, 375 (1991) (criteria based on

language skills are not per se criteria based on ethnicity).

7. Croson, 488 U.S. at 498.

8. See, e.g., Billish v. City of Chicago, 989 F.2d 890, 893 (7th Cir. 1993) (en banc).

9. Croson, 488 U.S. at 509.

10. See, e.g., Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).

11. Croson, 488 U.S. at 500.

12. Ibid., at 507; Regents v. Bakke, 438 U.S. 265, 307 (1978) (Powell, J.).

13. Regents v. Bakke, 438 U.S. 265, 307 (1978) (Powell, J.); Hopwood v. Texas, 78

F.3d 932 (5th Cir. 1996); University & Community College Sys. of Nevada v. Farmer,

113 Nev. 90 (1997). See also Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998) (taking

a skeptical look at the diversity justification but not dismissing it entirely).

14. See, e.g., Powers v. Ohio, 499 U.S. 400, 410 (1991); Croson, 488 U.S. at 501.

15. Watson v. Memphis, 373 U.S. 526, 533 (1963) (park); Baker v. City of St. Petersburg,

400 F.3d 294, 301 (5th Cir. 1968) (police); Palmore v. Sidoti, 466 U.S. 429, 433

(1984) (child custody).

16. Croson, 488 U.S. at 497–98.

17. See Richard A. Posner, “The DeFunis Case and the Constitutionality of Preferential

Treatment of Racial Minorities,” 1974 Supreme Court Review, p. 1.

18. Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996); see also Barhold v. Rodriguez,

863 F.2d 233, 238 (2d Cir. 1988) (police officers); Talbert v. City of Richmond, 648 F.2d

925, 931–32 (4th Cir. 1981) (police officers), suggested to no longer be good law; Hayes

v. North State Law Enforcement Officers Ass’n, 10 F.3d 207, 213 (4th Cir. 1993); Detroit

Police Officers’ Ass’n v. Young, 608 F.2d 671, 695–96 (6th Cir. 1979) (police officers),

recognized as no longer being good law; Michigan Road Builders Ass’n, Inc. v. Milliken,

834 F.2d 583 (6th Cir. 1987); Minnick v. California Dep’t of Corrections, 95 Cal. App.

3d 506 (1979) (prison guards), certiorari dismissed on procedural grounds, 452 U.S.

105 (1981). On the other side, see Hayes v. North State Law Enforcement Officers Ass’n,

10 F.3d 207, 213 (4th Cir. 1993), which explicitly says that the question whether

operational needs may justify race classifications is not resolved; and Croson, 488 U.S.

at 493, and Hopwood, 78 F.3d at 944, which suggest that race classifications may only

be justified by the desire to remedy past discrimination.

19. Croson, 488 U.S. at 521 (Scalia, J., concurring in the judgment); Lee v. Washington,

390 U.S. 333, 334 (1968) (Black, Harlan, and Stewart, JJ., concurring); Harris

v. Greer, 750 F.2d 617, 619 (7th Cir. 1984) (dictum); see also Weathers v. Gasparini,

1998 WL 8853, *4 (N.D. Ill. Jan. 8); Waler v. Walker, 654 So. 2d 1049, 1050 (Fla. App.

1995); Abbott v. Smaller, 1990 WL 131359, *3 n.2 (E.D. Pa. Sept. 5) (dictum).

20. Hunter v. Brandt, 1999 WL 694865 (9th Cir. Sept. 9), available at http://

laws.findlaw.com/9th/9755920.html.

21. In re Adoption/Guardianship No. 2633, 646 A.2d 1036 (M.D. App. 1994); In

re Moorehead, 75 Ohio App. 3d. 711, 723, 600 N.E.2d 778, 785 (1991); Petition of

D.I.S., 494 A.2d 1316 (D.C. 1985).

22. Coalition for Economic Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997).

23. See, e.g., Marci A. Hamilton, “The People: The Least Accountable Branch,” U.

of Chicago Roundtable 4 (1997) (arguing that Prop. 209 is unconstitutional in part

because under the Supreme Court’s precedents, “affirmative action may only be employed

constitutionally to battle proven historical discrimination”).

==============================

Illusions of Antidiscrimination Law

NELSON LUND

Slavery is responsible for the most serious and intractable political problems the United States has faced. Along with the poisonous legacy of that thoroughly un-American institution, we must also face its intersection with the very American tendency to conduct political struggles in the form of legal controversies.

Opponents and proponents of racial preferences have alike fixed their hopes largely on the courts. Advocates of reform focus on a series of recent decisions that evince an increasingly firm commitment to the norm of color-blind laws.1 Defenders of the pervasive and well-entrenched system of racial and ethnic preferences have for their part noted how narrowly divided the Supreme Court is and have desperately sought to delay further developments in the hope that new appointments will shift the balance in their favor.2

As a matter of tactics, both sides are probably right to view the Supreme Court as the decisive center of power. Although public opinion polls have for many years shown overwhelming opposition to racial preferences, Congress has done virtually nothing to curtail them. The legislature itself has created numerous preference programs, and there are no indications that this is likely to change soon.3

This has nothing to do with the merits of the issue but is entirely the result of interest group politics. In spite of the public sentiment opposing racial preferences, elected politicians have found that relatively few voters are so intensely repulsed that they will vote against candidates merely because they support these devices. Politicians also understand that a relatively small group of voters and activists, consisting largely of those who expect to benefit from preferences, will invest enormous resources in defense of the status quo. Just as with sugar quotas, racial quotas generate large economic bonuses for a narrow class of beneficiaries, who are therefore easily mobilized, while the corresponding economic losses are distributed, often invisibly, among a large and diffuse population. If sugar quotas cost each consumer a few cents a year, they can generate millions of dollars for a small group of sugar producers without generating meaningfully strong opposition from consumers; in those circumstances, elected politicians will naturally respond to the producers, who alone threaten to take political action in defense of their interests. The same calculations work against the reform of other special interest laws, including racial preferences. 4

This public-choice analysis suggests two corollaries. First, that the courts (because of their relative insulation from interest group politics and their heightened commitment to reason and principle) are the right place to thresh out the issues of racial preferences and affirmative action. Second, that we have no alternative forum for the vindication of enduring principles because the Congress is a hopeless lackey of special interests. Although I accept the public-choice analysis, I do not believe the corollaries are necessarily valid. On the contrary, the history of antidiscrimination law shows that the Supreme Court has often been a more malignant and unprincipled practitioner of racial politics than Congress and that the Court’s political activism in this area has had a corrupting influence on the Court’s own capacity for adhering to reason and principle.

Though I believe that the moral and political arguments against racial preferences are overwhelming on the merits, I do not claim that principled disagreements are impossible. In any event, whatever one’s views on the merit of racial preferences, one might expect that the political decisions about that issue reflected in the Constitution and in the statutes adopted by Congress ought to be adhered to until they are changed by constitutional amendment or by new congressional legislation. The Supreme Court has not accepted that proposition, choosing instead to replace the law with its members’ personal views of sound policy virtually at will. This usurpation of power has made a mockery of the vigorous and impassioned debates that led up to our major civil rights laws. And the Court’s history hangs like a slyly grinning specter over the current disputes about affirmative action. Whatever Congress may choose to do, is it likely to mean more than it has meant in the past?

A Very Short Sketch of the History of Antidiscrimination Law

The law affecting racial discrimination is by now so extensive and complex that no brief summary can offer more than a few illustrations, inadequately explained. The two main sources of genuine law, the Constitution and statutes, form the smallest portion of this body of law: they are far outweighed in bulk and importance by thousands of judicial decisions that provide what are taken as their authoritative interpretation. The development of this law has occurred primarily in three great phases: first during the antebellum period, then during and after Reconstruction, and finally during the modern civil rights era that began after World War II. For all their differences, the three periods have been remarkably similar in certain respects. First, Congress has in almost all the most important cases acted to reduce racial discrimination. Second, the Supreme Court has frequently ignored the Constitution and the statutes enacted by Congress, often preferring instead to protect and promote discrimination while indulging itself in an airy presumption of superior wisdom.

THE DRED SCOTT PHASE

The original Constitution ceded to the new federal government several important powers, but not the power to establish or abolish slavery in the states. The Constitution acknowledged the existence of slavery in three somewhat awkward locutions. First, it established an apportionment rule that treated “free Persons” differently from “all other Persons.”5 Second, it specified a twenty-year moratorium on congressional interference with state choices about which persons to admit through “Migration or Importation.” 6 Third, the Constitution required each state to deliver up escapees who had been “held to Service or Labour” in another state.7

The most famous case construing the original Constitution’s position on slavery is Dred Scott, which is familiar to everyone as a politically disastrous and morally offensive exercise of judicial power.8 That was indeed atrociously shameful, though not exactly for the reasons commonly assumed. If Chief Justice Roger B. Taney could come back to defend the decision, he would have to argue that he should not be blamed, for he was merely enforcing the Constitution. If that is what he was doing, we should indeed blame those who adopted the Constitution (rather than Taney and his colleagues) for the decision in Dred Scott.

But this defense of Taney fails. Recall the case. Scott’s master took him from the slave state of Missouri to the Upper Louisiana Territory (where slavery had been outlawed by the Missouri Compromise) and then back to Missouri. When Scott sued for his freedom, the Supreme Court turned him down, first because Congress had no power to forbid slavery in the territories, and second because a black person was in any case ineligible for American citizenship under the Constitution.

Taney’s first conclusion was based on a theory that the right of property in slaves was “distinctly and expressly affirmed in the Constitution” and therefore protected by the Fifth Amendment’s Due Process Clause.9 This theory has multiple fatal errors. Taney provided no support for his counterintuitive claim that due process protects substantive (as opposed to procedural) rights. Even if it did, no right in slaves was distinctly or expressly affirmed in the Constitution, and even the slave states did not pretend that slavery had any basis outside state law. Taney’s second, and even more outrageous, conclusion was based on the theory that blacks had not been considered eligible for citizenship when the Constitution was adopted. But this was factually incorrect, and Taney knew it: Justice Benjamin R. Curtis presented the evidence in his dissenting opinion, just as he demolished Taney’s due process theory.10 Taney was not interpreting the Constitution, or even misinterpreting it. He was simply lying.11

RECONSTRUCTION AND RETROGRESSION

Dred Scott’s jurisprudence of the barefaced lie did not prove unique. That technique was to resurface in future Supreme Court opinions, along with noxious blends of legalistic sophistry and unsupported ex cathedra pronouncements.

Once the Union was restored, Congress sent constitutional amendments to the states abolishing slavery, forbidding the states to violate certain fundamental rights of equality and nondiscrimination and outlawing racial discrimination in connection with the right to vote.12 Congress also passed several statutes to help safeguard these new constitutional guarantees, which were enforced fairly vigorously for a time.13 In 1877, however, the Republicans agreed to stop protecting black rights in a corrupt political deal that settled a disputed presidential election.14 The Jim Crow era was born.

The most famous of the Jim Crow cases is Plessy v. Ferguson, in which the Supreme Court considered the constitutionality of a Louisiana statute that required railroads to furnish “equal but separate accommodations” for white and black passengers and forbade breaches of the required separation. 15 Because the statute made it equally illegal for blacks to travel in “white” compartments and for whites to travel in “black” compartments, it was not entirely obvious whether the Constitution was violated by this formally equal treatment of the races.

The Court did not find the answer to this question because it never asked it. Justice Henry Billings Brown’s majority opinion simply declared that the Fourteenth Amendment permits every regulation that is “reasonable.” 16 Arguing that Louisiana’s statute could not stamp blacks with a badge of inferiority unless they foolishly chose to read something into it, Brown found that the law was reasonable because “legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.”17 To emphasize the Court’s total commitment to this utterly political judgment, Brown concluded that “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”18 Brown’s dishonest assertion about the degrading implications of the statute is matched only by his breathtaking insinuation that the Constitution is powerless to forbid regulations that the Supreme Court considers reasonable. Nor can the Court be defended by drawing a distinction between “social” inferiority (allegedly immune from legal controls) and “legal” inferiority (presumably curable by law).

The statute at issue in the case forbade the voluntary mixing of the races on trains and was thus a legal effort to promote “social” inferiority. Justice John Marshall Harlan wrote an eloquent dissent, which has come to be very highly regarded.19 Unlike the majority, Harlan had no interest in lying about the statute’s degrading intent, which he thought was likely to inflame racial animosity rather than keep the peace. But his legal analysis was little better than the majority’s, for he declared that the Constitution forbids “discrimination by the General Government or the States against any citizen because of his race.”20 This is a lie of its own, in two ways. First, the Constitution contains no language forbidding racial discrimination by the federal government, except in the area of voting rights.

Second, although the Fourteenth Amendment forbids the states from violating certain civil rights, the broad and somewhat mystifying description of those rights does not contain any explicit or self-evidently general ban on racial discrimination. Harlanmay well have been right that the Louisiana statute violated the Constitution, but he did not give a single good reason for his conclusion.21 Like the Plessy majority, Harlan simply assumed that the Constitution reflected what he considered good policy without attending in the least to what the Constitution says.22

THE MODERN ERA BEGINS

Plessy established the terms for the modern era’s constitutional debates over race discrimination, which has consisted of an elaborate series of decisions applying Justice Brown’s “reasonableness” standard.23 This process has been punctuated by occasional evocations of Justice Harlan’s colorblind constitutional vision, but the Supreme Court left the Constitution itself aside so long ago that the document has become little more than a curio in this field.

The Court’s most revered decision on racial discrimination illustrates the pattern. Without any analysis of the Constitution’s text, Brown v. Board of Education dismissed the legislative history of the FourteenthAmendment as “inconclusive” and unanimously declared separate educational facilities for black and white children “inherently unequal.”24 This conclusion was based entirely on a theory about childhood education: at least in the context of public schools, separating children from others of similar age and qualifications solely because of their race “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”25

Whatever its merits as pedagogical theory, this rationale proved to be merely a cover story. Brown was followed by a series of decisions declaring unconstitutional many disparate forms of segregation while refusing to strike down laws dealing with the sensitive subject of miscegenation, and all without any explanation whatsoever.26 Because the rationale on which Brown was ostensibly based applied only to primary and secondary education, the real basis unifying that decision with its immediate progeny could hardly have been anything but political intuitions about what was “reasonable” at the moment.27 As in Dred Scott and Plessy, the Constitution that was supposedly being interpreted was simply ignored. A few years later, the Court took the logical next step by declaring its own opinion in Brown to be the “supreme law of the land.”28

CONGRESS STEPS UP AND THE COURT HITS BACK

It would be easier to understand the reverence for Brown if the Court’s contemptuous disregard for judicial obligations and limits had accomplished some great and salutary political effect that could not otherwise have been achieved. In fact, however, the Court could have arrived at the same result that Brown reached had it been willing to engage in standard legal research and standard legal reasoning, rather than in pedagogical theorizing and nonjudicial politicking.29 Furthermore, Brown did not even begin the process of school desegregation in the Deep South, which began to occur only after Congress armed the federal government with real enforcement powers ten years later.30

The Civil Rights Act of 1964 and subsequent statutes deserve the principal credit for desegregating the schools and for the abolition of Jim Crow generally. In addition to provisions giving the federal government meaningful school-desegregation tools, the 1964 Act contained elaborate statutory provisions outlawing racial discrimination in public accommodations, by recipients of federal funding, and in private employment. The following year, Congress enacted strong provisions for enforcing the voting rights guaranteed by the Fifteenth Amendment, which had been notoriously flouted for many decades. In 1968, legislation aimed at reducing discrimination in the housing markets was enacted, and four years later Congress extended the ban on employment discrimination to the state and federal governments.

Although the principal provisions of these statutes were generally written with considerable clarity, the Supreme Court has frequently treated them with cavalier disregard, as it had previously treated the Constitution itself. Consider, for example, the statutory language banning employment discrimination:

It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.31

To eliminate any doubt about the meaning of this straightforward language, Congress added:

Nothing contained in this [statute] shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.32

The Supreme Court quickly began turning this statute from a straightforward prohibition against discrimination into a device for promoting discrimination. In its unanimous 1971 Griggs decision, the Court relied on a series of factual misstatements, logical non sequiturs, and sophomoric philosophizing to write into law a wholly new and different statute.33 Under the Griggs law, an employerwho does not intentionally discriminate because of race can nevertheless be held liable if the failure to discriminate produces a workforce with too few minorities, unless the employer’s selection criteria meet an undefined, judicially created standard of “business necessity.”34

This new law encourages nondiscriminating employers with numerically unbalanced workforces to avoid potentially ruinous litigation by hiring more of the underrepresented minorities.Taking that step will often require discriminating against whites (and/or other minorities), in violation of the law that Congress actually wrote.35

That dilemma for employers was ameliorated by the Court’s 1979 Weber decision, which held that Congress’s prohibition against discrimination actually permits employers to adopt intentional and overt racial quotas if they are “designed to break down old patterns of racial segregation and hierarchy” and do not “unnecessarily trammel the interests of the white employees.”36 Acknowledging that this conclusion is inconsistent with the “literal” language of the statute, Justice Brennan’s majority opinion claimed to rely on the law’s “spirit.”37 As Justice Rehnquist’s dissent conclusively proved, however, the debates in Congress about the statute’s meaning did not contain a shred of evidence for the existence of any such spirit. Those debates, moreover, included overwhelming evidence that the spirit of the statute was perfectly embodied in its “literal” language.38

Though the Supreme Court decisively rewrote the Civil Rights Act to permit and encourage racial discrimination, it has had more difficulty in deciding what standard of reasonableness it should implant in the Constitution. To this day, the Court has been unable to settle on the rules under which governments may and may not discriminate. The Bakke case, which involved a minority set-aside for seats in a state medical school, set the pattern. Four Justices concluded that the Civil Rights Act of 1964 forbade such discrimination, relying on the following provision: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”39 Four other Justices broadly concluded that both the statute and the Constitution permit racial quotas to be used to overcome minority underrepresentation in the medical profession. Justice Powell concluded that the statute and the Constitution forbid blatant quotas but allow more subtle systems of discrimination.

Justice Powell’s Bakke opinion (with which none of the other Justices agreed) came to be widely regarded as the law. Powell recommended the Harvard admissions approach: conceal your discrimination by treating race and ethnicity as one factor along with many others, thus making it difficult to prove which whites are being rejected because they are white and which are being rejected for other reasons. Because it is obviously meaningless to treat anything as a “factor” unless it will sometimes be the deciding factor, the Harvard-Powell approach is really just the application of a public relations gimmick.40 Because constitutional law itself had long since become a game of legerdemain where race is concerned, there is poetic justice in Powell’s solitary embrace of disguised discrimination being taken as if it were a holding of the Court.41

In the years since Bakke, the Court has sustained some constitutional challenges to racial preferences and rejected others, but without reaching agreement on the rationale for deciding such cases.42 The most recent decision is in some ways the most peculiar. This case, known as Adarand, was brought by a white-owned construction company that submitted the low bid on a federal highway contract but lost out because of a federal minority preference program.43 The company claimed that the preference violated the constitutional guarantee of “equal protection of the laws.”

For someone familiar with the Constitution, the most obvious obstacle facing the white plaintiff might seem to be that the Equal Protection Clause applies only to the state governments, not to the federal government.44 Many years ago, however, the Justices had decreed that the Constitution as written was in this respect “unthinkable” (by which they could only have meant “intolerable”) and therefore invented a fictitious new provision correcting the Constitution’s insufferable oversight.45 Accordingly, the Adarand plurality opinion for four Justices set the Constitution aside and launched instead into an extended consideration of the Court’s own precedents. 46

From those hopelessly confusing and conflicting precedents, a new rule was distilled: federal racial classifications, like those of a state’s, would henceforth be subject to strict scrutiny, which was said to mean that they must be narrowly tailored measures serving “compelling governmental interests.”47 This rule, however, is almost completely uninformative without a definition of “compelling” government interests. Not only did the Justices provide no such definition, they were incapable even of applying their rule to the very case before them. Rather than make a decision, they voted to send it back to the lower courts, which were expected to investigate whether the flagrant, racial spoils systems at issue serve a compelling government interest.48 Because it is quite obvious that the Court would have had no such uncertainty in a case where the government used similar means to favor whites (or, for that matter, such minorities as Jews or Irish Americans), Adarand leaves unresolved the issue first raised in Bakke.49

In a particularly bizarre touch, Justice Scalia joined the plurality opinion (thereby making it a majority opinion) “except insofar as it may be inconsistent” with his own separate statement. That statement featured his declaration that “government can never have a ‘compelling interest’ in discriminating on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction.”50

Justice Scalia was quite right that it is impossible to discern whether his declaration is consistent with the plurality opinion or not, which highlights the essential meaninglessness of the Court’s decision in the case. What is even more interesting, however, is the basis for Scalia’s own view. Citing four provisions of the Constitution that prohibit specific forms of discrimination other than racial discrimination by the federal government, Scalia seemed to make the illogical suggestion that they somehow provide grounds for finding in the Constitution a fifth prohibition that is not there. Undoubtedly aware that this would violate his whole approach to interpreting the law, and that he had previously commented on the “sound distinction” that the Constitution created between the state and federal governments on matters of race, this apostle of adherence to the Constitution’s original meaning rested in the end on manifestly Harlanesque policy grounds: “To pursue the concept of racial entitlement (even for the most admirable and benign of purposes) is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”51

This is a very good policy, and one that Congress has already enacted in a variety of contexts.52 Unfortunately, the Supreme Court has stubbornly refused to accept that congressional decision in some of the most important areas, including employment discrimination and discrimination by recipients of federal funding (which include virtually all private colleges and universities, as well as all public schools). The statutes enacted by Congress remain on the books, and the only obstacle to their enforcement is the Court’s continuing refusal to overrule its own willfully erroneous precedents. Although the Court seems incapable either of attending to the language of the Constitution or of saying what the Reasonableness Clause it invented means these days, it should not be impossible to apply at least the clearest of the color-blind statutory commands. And if a majority of the Justices decide that those commands are politically desirable, they no doubt will apply them.

Conclusion

The Supreme Court sometimes follows the Constitution and statutes when adjudicating matters involving racial discrimination. But the frequency and insouciance with which it has refused to do so makes it very difficult to believe that it ever follows them because they are the law. Rather, the Court has arrogated to itself the privilege of enforcing whatever policy it believes is best.

Does this mean that we should admit the irrelevance of Congress, except to the extent that the Senate might be persuaded to reject judicial nominees who have policy views with which we disagree? Perhaps not. First, Adarand bespeaks at least a temporary inability or unwillingness of the Court to choose a policy for the nation. While this lasts, the Court may be likely to accept an unambiguous congressional reaffirmation of the principles embodied in the 1964 Civil Rights Act. And such a reaffirmation is not completely unthinkable. It is true that Congress is notoriously inclined to respond with inaction (or with hopelessly ambiguous legislation) when faced with a conflict between popular and enduring principles like governmental color blindness and the pressure of politically powerful special interests.53 But enduring principles are sometimes vindicated, as so conspicuously happened when the 1964 Act was adopted.

In one respect, it should be easier to overcome the resistance to principle today than it was thirty-five years ago. For all their obstinate resistance to change, the forces seeking to preserve racial preferences are not nearly so powerful as those that were arrayed in defense of Jim Crow, and they do not have nearly as much at stake. And yet the stubborn fact remains that our current regime of racial preferences is not as brutally inconsistent with American principles as Jim Crow, let alone chattel slavery. Although the revival of color-blind laws would certainly advance the principles to which the Declaration of Independence first committed our nation, it would be an exaggeration to claim an advance comparable to that entailed in the destruction of Jim Crow. Thus, with less at stake now than in 1964, it should come as no surprise if Congress continues to temporize in the hope that someone else will somehow make the whole issue go away. The most likely candidate for this role, of course, is the Supreme Court. But whatever Congress does or fails to do, and whatever further steps the Court itself decides to take, we may already have lost the possibility of resolving the issue through law. As Justice Curtis presciently noted in his Dred Scott dissent:

When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.54

Notes

For helpful comments on a preliminary draft of this essay, the author is grateful to

Roger Clegg, Neal Devins, Stephen G. Gilles, Mara S. Lund, and John O. McGinnis.

1. See, e.g., Adarand Constructors, Inc. v. Pen˜a, 515 U.S. 200 (1995) (racial classifications

by federal government are presumptively unconstitutional); Miller v. Johnson,

515 U.S. 900 (1995) (racial gerrymandering is presumptively unconstitutional); City of

Richmond v. Croson, 488 U.S. 469 (1989) (municipal set-aside program for minority

contractors violated Fourteenth Amendment); Taxman v. Board of Education of Township

of Piscataway, 91 F.3d 1547 (3d Cir. 1996) (employer with a racially balanced

workforce violated Civil Rights Act of 1964 when it granted a nonremedial racial

preference in order to promote “racial diversity”), cert. granted, 117 S. Ct. 2506 (1997),

cert. dismissed, 118 S. Ct. 595 (1997); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996)

(preference program for minority applicants to state law school violated Fourteenth

Amendment), cert. denied, 518 U.S. 1033 (1996); Podberesky v. Kirwan, 38 F.3d 147

(4th Cir. 1994) (state university scholarship program open only to black students

violated Fourteenth Amendment), cert. denied, 514 U.S. 1128 (1995).

2. See, e.g., Steven A. Holmes, “A Dilemma Led to a Deal Over Hiring Tied to

Race,” New York Times, November 23, 1997, sec. 1, p. 37.

3. See, e.g., Congressional Research Service, Compilation and Overview of Federal

Laws and Regulations Establishing Affirmative Action Goals or Other Preferences Based

on Race, Gender, or Ethnicity, Feb. 17, 1995 (identifying some 160 preferential laws and

regulations) (reprinted in 141 Congressional Record S3930-3938 (daily ed., March 15,

1995)). This study included preferences based on sex and ethnicity as well as race. This

essay will not deal with sex discrimination, and it will seldom distinguish between race

and ethnicity. Though some exceptions exist (especially in the area of voting rights),

the law generally treats race and ethnicity alike.

4. Whereas sugar quotas impose a very small cost on everyone, racial quotas will

tend to impose on everyone a small risk of suffering a large loss (such as a job or

promotion denied). This difference between the two phenomena does not significantly

affect the analysis presented in the text.

5. U.S. Const., art. 1, sec. 2, cl. 3: “Representatives and direct Taxes shall be

apportioned among the several States which may be included within this Union,

according to their respective Numbers, which shall be determined by adding to the

whole Number of free Persons, including those bound to Service for a Term of Years,

and excluding Indians not taxed, three fifths of all other Persons.”

6. Ibid., sec. 9, cl. 1: “The Migration or Importation of such Persons as any of the

States now existing shall think proper to admit, shall not be prohibited by the Congress

prior to the Year one thousand eight hundred and eight, but a Tax or duty may be

imposed on such Importation, not exceeding ten dollars for each Person.”

7. Ibid., art. 4, sec. 2, cl. 2: “No Person held to Service or Labour in one State,

under the Laws thereof, escaping into another, shall, in Consequence of any Law or

Regulation therein, be discharged from such Service or Labour, but shall be delivered

up on Claim of the Party to whom such Service or Labour may be due.”

8. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

9. Ibid., p. 451. The Fifth Amendment provides in relevant part that no person

shall be “deprived of life, liberty, or property, without due process of law.”

10. See Dred Scott, pp. 572–75, 626–27 (Curtis, J., dissenting).

11. For a somewhat more detailed summary of the issues in Dred Scott, see Nelson

Lund, “The Constitution, the Supreme Court, and Racial Politics,” Georgia State University

Law Review 12 (1996): 1129, 1132–36.

12. Abolishing slavery: U.S. Const., amend. 13, providing in relevant part: “Neither

slavery nor involuntary Servitude, except as a punishment for crime whereof the party

shall have been duly convicted, shall exist within the United States, or any place subject

to their jurisdiction.”

Nondiscrimination: ibid., amend. 14, providing in relevant part: “No State shall

make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.” Much of modern constitutional law purports to be based on

the due process and equal protection provisions of the Fourteenth Amendment. Very

little of this law, however, or of the constitutional scholarship that typically aims to

influence the development of the law, is based on any coherent and defensible analysis

of the constitutional text. For an important exception, see John Harrison, “Reconstructing

the Privileges and Immunities Clause,” Yale Law Journal 101 (1992): 1385.

Right to vote: ibid., amend. 15, providing in relevant part: “The right of citizens of

the United States to vote shall not be denied or abridged by the United States or by

any State on account of race, color, or previous condition of servitude.”

13. Significant elements of the statutory matrix enacted during Reconstruction for

the enforcement of these protections were held unconstitutional, in whole or in part,

by the Supreme Court. The Civil Rights Act of 1875, for example, was struck down in

the Civil Rights Cases, 109 U.S. 3 (1883). Among the most important enactments that

survived judicial review were the Civil Rights Act of 1866 (codified as amended at 18

U.S.C. sec. 242; 42 U.S.C. secs. 1981–83); the Enforcement Act of 1870 (codified as

amended at 18 U.S.C. sec. 241); and the Ku Klux Klan Act of 1871 (codified as amended

at 42 U.S.C. secs. 1983, 1985(c)). Eventually, the Supreme Court swung in the opposite

direction and began broadening the reach of the surviving statutes in highly questionable

ways. See, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968); Runyon v.

McCrary, 427 U.S. 160 (1976); Monell v. Dept. of Social Serv. of the City of New York,

436 U.S. 658 (1978).

On early enforcement practices, see: Frank J. Scaturro, President Grant Reconsidered

(Lanham, Md.: University Press of America, 1998), pp. 63–100; Robert J. Kaczorowski,

“Federal Enforcement of Civil Rights During the First Reconstruction,”Fordham Urban

Law Journal 23 (1995): 155.

14. C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the

End of Reconstruction, 2d rev. ed. (Garden City, N.Y.: Doubleday, 1956); Michael W.

McConnell, “The Forgotten Constitutional Moment,” Constitutional Commentary 11

(1994): 115, 123–40.

15. 163 U.S. 537 (1896).

16. Ibid., p. 550.

17. Ibid., p. 551.

18. Ibid., p. 552.

19. See, e.g., Nathaniel R. Jones, “The Harlan Dissent: The Road Not Taken—An

American Tragedy,” Georgia State University Law Review 12 (1996): 951.

20. 163 U.S. at 556 (quoting Gibson v. Mississippi, 162 U.S. 565 (1896)). To similar

effect, see 163 U.S. at 554, 563.

21. A central purpose of the Fourteenth Amendment’s Privileges or Immunities

Clause was apparently to outlaw state restrictions of basic civil rights—like the right to

contract—on the basis of race. See Harrison, “Reconstructing the Privileges and Immunities

Clause.” Like antimiscegenation laws, the statute at issue in Plessy imposed

just such a restriction, and the fact that it imposed symmetrical racial restrictions on

whites and blacks alike would seem merely to have rendered it unconstitutional in its

application to both classes of citizens. See ibid., pp. 1459–60, 1462.

22. For further analysis of Plessy, see Lund, “The Constitution, the Supreme Court,

and Racial Politics,” pp. 1141–48.

23. See Andrew Kull, The Color-Blind Constitution (Cambridge, Mass.: Harvard

University Press, 1992), p. 118: “Racial classifications, announced Justice Brown (in

Plessy), are like every other sort of classification, and those racial classifications will be

constitutional that a majority of the Supreme Court considers to be ‘reasonable.’ That

rule of constitutional law, and no other, will explain every Supreme Court decision in

the area of racial discrimination from 1896 to the present.”

24. 347 U.S. 483, 489, 495 (1954).

25. Ibid., p. 494.

26. Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (per curiam) (desegregating

public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (per

curiam) (desegregating public golf courses); Gayle v. Browder, 352 U.S. 903 (1956) (per

curiam) (desegregating public buses); New Orleans City Park Improvement Ass’n. v.

Detiege, 358 U.S. 54 (1958) (per curiam) (desegregating public parks); Turner v. City

of Memphis, 369 U.S. 350 (1962) (per curiam) (desegregating municipal airport restaurant);

Naim v. Naim, 350 U.S. 891 (1955) (per curiam), 350 U.S. 985 (1956) (per

curiam) (refusing to accept mandatory appellate jurisdiction over state supreme court

decision upholding antimiscegenation statute).

27. Eventually, the Court got the feeling that the time was right to invalidate

antimiscegenation laws. See Loving v. Virginia, 388 U.S. 1 (1967).

28. See Cooper v. Aaron, 358 U.S. 1, 18 (1958): “The interpretation of the Fourteenth

Amendment enunciated by this Court in the Brown case is the supreme law of the

land.” The Constitution, by way of contrast, provides: “This Constitution, and the

Laws of the United States which shall be made in Pursuance thereof; and all Treaties

made, or which shall be made, under the authority of the United States, shall be the

supreme Law of the Land.” U.S. Const., art. 6, cl. 2.

29. For a powerful and detailed presentation of legal arguments (too complicated

to summarize here) that support the result in Brown, see Michael W. McConnell,

“Originalism and the Desegregation Decisions,” Virginia Law Review (1995): 947. Had

the Court adopted an argument along the lines of Professor McConnell’s, Brown would

have been an ordinary and respectable (if not unchallengeable) act of constitutional

interpretation.The Court might have had to wait until someonedevelopedan argument

like McConnell’s, but it is hard to believe—in light of the extraordinary industry and

resourcefulness that the modern civil rights bar has displayed—that it would have had

to wait forty years. In any event, the Supreme Court was unwilling to wait for such an

argument and perhaps had already created an intellectual climate that discouraged the

kind of research and analysis set forth in McConnell’s work.

30. There is a controversy about the exact nature of Brown’s ultimate and indirect

effects. Compare, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About

Social Change? (Chicago: University of Chicago Press, 1991), pp. 39–174 (emphasizing

evidence suggesting that Brown contributed little to the modern civil rights revolution),

with Neal Devins, “Judicial Matters,” California Law Review 80 (1992): 1027, 1039–46

(accusing Rosenberg of exaggeration and arguing that Brown both helped energize the

civil rights movement and produced important direct effects beginning in 1964).

Although it is probably impossible to eliminate all doubt about the nature of Brown’s

indirect effects, or to know for sure what would and would not have happened without

that decision, it is agreed that no significant desegregation took place until after the

Civil Rights Act of 1964. In addition to the sources cited above, see Gary Orfield, The

Reconstruction of Southern Education: The Schools and the 1964 Civil Rights Act (New

York: Wiley-Interscience, 1969), pp. 356–57; Neal Devins and James Stedman, “New

Federalism in Education: The Meaning of the Chicago School Desegregation Cases,”

Notre Dame Law Review 59 (1984): 1243, 1245–51.

31. 42 U.S.C. sec. 2000e-2(a). The statute contains certain exceptions to this general

rule against discrimination, the most important of which is an exemption for small,

private employers. See ibid., sec. 2000e(b). Only one of the other exceptions arguably

authorizes racial discrimination,and that is limited to preferences for American Indians

living on or near Indian reservations. See ibid., sec. 2000e-2(i). One other exception

appears to authorize certain forms of discrimination based on national origin (but not

race); this rarely litigated exception has been construed narrowly.

See ibid., sec. 2000e-2(e); Avigliano v. Sumitomo Shoji America, Inc., 638 F.2d 552, 559

(2d Cir. 1981) (“‘bona fide occupational qualification’ (‘bfoq’) exception of Title VII

is to be construed narrowly in the normal context” (citing Dothard v. Rawlinson, 433 U.S. 321, 334 (1977)),

vacated on other grounds, 457 U.S. 176 (1982).

As applied to the state and federal governments, the prohibition of employment

discrimination is unquestionably constitutional. The Supreme Court’s broad reading

of Congress’s power under the Commerce Clause has been assumed to eliminate any

doubt about the constitutionality of prohibiting discrimination by private employers.

See, e.g., EEOC v. Ratliff, 906 F.2d 1314, 1315–16 (9th Cir. 1990).

32. 42 U.S.C. sec. 2000e-2(j).

33. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

34. For a detailed discussion of the Griggs opinion, see Nelson Lund, “The Law of

Affirmative Action in and After the Civil Rights Act of 1991: Congress Invites Judicial

Reform,” George Mason Law Review 6 (1997): 87, 91–101.

35. The Griggs opinion was in several respects highly confused and ambiguous, and

it left considerable uncertainty about the extent to which employers with “too few”

minorities were thereby exposed to legal liability. In a series of later decisions, culminating

in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), the Supreme Court

eventually interpreted Griggs in a manner that seemed to insulate employers from

liability in most cases involving normal business practices that are not intentionally

discriminatory. In 1991, Congress codified a version of the Griggs–Wards Cove theory

of liability, apparently preservingmost of the employer protections established inWards

Cove but using language that was highly ambiguous in several important respects. See

Nelson Lund, “Retroactivity, Institutional Incentives, and the Politics of Civil Rights,”

Public Interest Law Review (1995): 87, 109–10; Lund, “The Law of Affirmative Action

in and After the Civil Rights Act of 1991,” p. 116 and n. 149. The Supreme Court has

not yet interpreted these provisions of the 1991 statute, but some lower courts have

adopted highly questionable interpretations of the law, which seem likely to create new

incentives for quotas. See, e.g., Lanning v. SEPTA, 181 F.3d 478 (3d Cir. 1999); Bradley

v. Pizzaco of Nebraska, Inc., 7 F.3d 795 (8th Cir. 1993).

36. United Steelworkers v. Weber, 443 U.S. 193, 208 (1979).

37. Ibid., p. 201.

38. For a brief discussion of the legal arguments in Weber, see Lund, “The Law of

Affirmative Action in and After the Civil Rights Act of 1991,” pp. 101–6.

39. 42 U.S.C. sec. 2000d. Justice Stevens’s opinion, which was joined by Chief

Justice Burger and by Justices Stewart and Rehnquist, included a detailed demonstration

of the congruence between this language, which Stevens correctly described as

“crystal clear,” and the congressional intent reflected in the debates leadingup to passage

of the 1964 Act.

40. Justice Powell implicitly recognized the gimmickry when he explained that the

advantage of the Harvard approach was that applicants are not “foreclosed from all

consideration” because of their race or ethnicity (438 U.S. at 318, emphasis added).

He nonetheless assured would-be discriminators that the gimmick would work because

“a court would not assume that a university, professing to employ a facially nondiscriminatory

admissions policy, would operate it as a cover for the functional equivalent

of a quota system.”

41. Justice Stevens pointed out that the only issue before the Court was the validity

of the set-aside program challenged in the Bakke litigation. See 438 U.S. at 408–11

(Stevens, J., dissenting). Five Justices having voted to hold that program invalid under

the 1964 Act, the remarks of Justice Powell about the validity of materially different

affirmative action programs should not properly be considered part of the Court’s

holding. See, e.g., Alan J. Meese, “Reinventing Bakke,” 1 Green Bag 2d 381 (1998).

42. The Court has issued one majority opinion, in Metro Broadcasting, Inc. v. FCC,

497 U.S. 547 (1990), a decision that was later overruled by Adarand Constructors, Inc.

v. Pen˜a, 515 U.S. 200, 225–27 (1995).

43. Adarand Constructors, Inc. v. Pen˜a, 515 U.S. 200 (1995).

44. See U.S. Const., amend. 14.

45. Bolling v. Sharpe, 347 U.S. 497, 500 (1954).

46. One subsection of the opinion, which dealt with the doctrine of stare decisis,

expressed the views of only two Justices. Four Justices concurred in the remainder of

the opinion, which (as explained below) was also joined to some indeterminate extent

by a fifth Justice.

47. 515 U.S. at 227.

48. Adarand expressly refused to overruel Fullilove v. Klutznick, 448 U.S. 448 (1980),

which had upheld a minority preference program almost identical to the one at issue

in Adarand. As the chief congressional sponsor of the Fullilove program had explained,

its purpose was to make sure that “minority businesses get a fair share of the action.”

123 Congressional Record 5327 (1977) (remarks of Rep. Parren Mitchell).

49. Although the plurality opinion declared that the Constitution required the

courts to treat all races “consistently” when applying equal protection analysis (515

U.S. at 224), it nevertheless concluded that the constitutionality of a law might well

depend on which race it disfavored: “The principle of consistency simply means that

whenever the government treats any person unequally because of his or her race, that

person has suffered an injury that falls squarely within the language and spirit of the

Constitution’s guarantee of equal protection. It says nothing about the ultimate validity

of any particular law; that determination is the job of the court applying strict scrutiny.

The principle of consistency explains the circumstances in which the injury requiring

strict scrutiny occurs. The application of strict scrutiny, in turn, determines whether a

compelling governmental interest justifies the infliction of that injury” (ibid., pp. 229–

30). Thus does the Supreme Court render consistency and inconsistency consistent.

For a detailed discussion of Adarand’s place in the Court’s lengthy exercise in issue

avoidance, see Neal Devins, “Adarand Constructors, Inc. v. Pen˜a and the Continuing

Irrelevance of Supreme Court Affirmative Action Decisions,” William and Mary Law

Review 37 (1996): 673.

50. 515 U.S. at 239 (Scalia, J., concurring in part and concurring in the judgment).

51. Adarand, 515 U.S. at 239 (Scalia, J., concurring in part and concurring in the

judgment). This passage was clearly inspired by Harlans words: “In view of the Constitution,

in the eye of the law, there is in this country no superior, dominant, ruling

class of citizens. There is no caste here. Our Constitution is color-blind, and neither

knows nor tolerates classes among citizens. . . . The humblest is the peer of the most

powerful. The law regards man as man, and takes no account of his surroundings or

of his color when his civil rights as guaranteed by the supreme law of the land are

involved. . . . State enactments, regulating the enjoyment of civil rights, upon the basis

of race, and cunningly devised to defeat legitimate results of the war, under the pretense

of recognizing equality of rights, can have no other result than to render permanent

peace impossible, and to keep alive a conflict of races, the continuance of which must

do harm to all concerned.” Plessy v. Ferguson, 163 U.S. at 559–61 (Harlan, J , dissenting).

On the “sound distinction” between the state and federal governments, see City of

Richmond v. J. A. Croson Co., 488 U.S. 469, 521–24 (1989) (Scalia, J., concurring in the

judgment).

52. See the summary, earlier in this essay, of the main provisions of the Civil Rights

Act of 1964. Congress’s departures from the policy of governmental color blindness

have occurred mostly in the discrete and relatively limited context of set-aside programs

like the one at issue in Adarand.

53. Examples of particularly excruciating ambiguity can be found in the Civil Rights

Act of 1991 and the Voting Rights Act amendments of 1982. For a thorough discussion

of the 1982 amendments, see Abigail N. Thernstrom, Whose Votes Count? Affirmative

Action and Minority Voting Rights (Cambridge, Mass.: Harvard University Press, 1987).

54. 60 U.S. (19 How.) at 620–21; emphasis added.

==============================

PART SIX — POLITICS

Race, Ethnicity, and Politics in American History

MICHAEL BARONE

The role of race in American politics cannot be understood except as an example of the role of ethnicity in American politics. In spite of the long-standing elite opinion that ethnicity should not play any role in politics, that voters and politicians should act without regard to ethnic factors, in fact ethnicity has always played an important part in our politics. This is what we should expect in a country that has always had forms of racial and ethnic discrimination, and in which civic and university and corporate elites, for all their tut-tutting about ethnic politics, have often been more hearty practitioners than ordinary people of ethnic discrimination— of anti-Jewish discrimination up through the 1960s and of racial quotas and preferences since the 1970s.

Over the long course of our history politics has more often divided Americans along cultural than along economic lines—along lines of region, race, ethnicity, religion, and personal values. This is natural in a country that has almost always been economically successful and culturally multivarious, in which economic upward mobility has been the common experience and in which cultural and ethnic identities have often been lasting and tenacious. It has been observed by none less than our current vice president that we are moving into a new and unprecedented era in American history in which our people are being transformed from one to many. But Mr. Gore in doing so not only mistranslated the national motto E pluribus unum—a mistake that would have been met with ridicule if made by his predecessor—but also ignored the long history of American political divides along racial and ethnic lines. We are not in a totally new place; we have been here before, and we can learn from our history—and our motto.

The common pattern seems to be this: there is an inrush into the electorate of a new ethnic or racial group, with a strong preference for one political party, and politics seems to be structured around this division. Attempts are made to limit the new group’s strength in the electorate, sometimes successfully, more often not. Then there are inrushes of other groups, with checkerboarded political preferences, depending more on local circumstances and issues than on any single national pattern. Politicians and parties compete for the support of these groups, with generally benign results. Eventually, there is regression to mean: the issues and identities that once led a group to favor one party heavily are replaced by other issues and identities that tend to divide them pretty much along the lines of the electorate generally. But this is a process that can take a long time, and in which the original identities and issues continue to play an important role in politics for many years.

Such inrushes occurred even in colonial times. Puritans in Massachusetts were alarmed by inrushes of Anabaptists; the response was expulsion and the establishment of the Rhode Island colony. Benjamin Franklin was alarmed by the growing numbers of Germans in the interior of Pennsylvania; the response was gerrymandering to maintain the primacy of the Delaware River valley counties settled by Quakers and others from the North Midlands of Britain. Coastal North Carolinians were alarmed by the inrush of Scots-Irish to the Piedmont; the response was Loyalism in the Revolution. Interestingly, these divisions are still discernible in the election returns: Massachusetts and Rhode Island remain separate; the Pennsylvania Dutch counties are the most heavily Republican territory in the Northeast; the North Carolina lowlands are much more Democratic than the Piedmont.

The first great inrush of newcomers to the electorate of the young Republic, of Irish Catholics, began in large numbers after the potato famine of 1846. But even in the 1830s the Whig mayor of New York, Philip Hone, noted with disapproval how Irish immigrants were being marched from the docks to the polls by Democratic precinct politicians; in those days noncitizens could vote. The Whig governor of New York, William Seward, elected in 1838, sought the Irish votes by promising state support for Catholic schools.

But by overwhelming numbers the Irish became Democrats. The party of Andrew Jackson, following the example of Thomas Jefferson, was more friendly to religious dissenters than its rivals; Whig Connecticut in the 1830s still had an established Protestant church. The Democracy (as it was called) was a laissez-faire party, in economics and also in culture. The Whigs favored federal road-building, and Upstate New York, settled mostly by New England Yankees and heavily Whig, was seething with agitation for abolition of slavery, temperance and prohibition,new Protestant sects— busybody activism abhorrent to the Irish. The Irish were greeted by discrimination; my Irish American grandmother, born in 1881, explained her support of the Civil Rights Act of 1964 by recalling the “No Irish Need Apply” signs of the late nineteenth and early twentieth centuries. There was a racial element here: the Irish, with low rates of intermarriage and usually of distinctive appearance, were widely regarded as not “white.”

Their Democratic preference remained solid for more than a century. Irish votes were what made New York, the largest and by far the most politically prominent state, a key marginal state in most elections rather than heavily Whig and then Republican. In New England, politics was divided on Catholic-Protestant lines up through 1960s as much as politics is divided on black-white lines in Mississippi today. The Irish propensity for large families made Yankee Republicans proponents of birth control (President George Bush’s mother supported Planned Parenthood even as she had five children herself ) in an effort to prevent being outnumbered by Catholics. But it was in vain. In 1918 Henry Cabot Lodge defeated John F. Fitzgerald in a Senate race divided on Catholic-Protestant lines; by 1952 the numbers had changed enough that Fitzgerald’s grandson defeated Lodge’s grandson for reelection.

The strong Irish preference for Democrats continued up through 1960, when Fitzgerald’s grandson was elected president. In that election, 78 percent of Catholics voted for John Kennedy, while 63 percent of white Protestants voted for the Scots-Irish Protestant Richard Nixon. Four years later, even as Lyndon Johnson was elected by a landslide, the Catholic Democratic percentage declined slightly to 76 percent; it has never remotely approached those levels since. You can only elect the first Irish Catholic president once. The election of Kennedy, his high job approval, the pomp and ceremony of his funeral—all established conclusively that Catholics were fully American. At the same time, with the Vatican II reforms, a sudden decline in the number of large Catholic families and in vocations for the priesthood, and the end of the Latin mass and meatless Fridays, Catholics were becoming less distinctive. Today Irish Catholics vote pretty much like the electorate as a whole.

Following the inrush of Irish Catholics was a second stream of new voters, Germans who arrived in large numbers after the failed revolutions of 1848 and up through the 1880s. Unlike the Irish, they did not all head for the major cities—many became farmers—and they were not monolithically Democratic. German Protestants tended to be Whigs and then Republicans; German Catholics were more Democratic; Germans in heavily German Milwaukee in time elected a Socialist mayor and congressman (the latter was a secular Jew but seems to have been regarded by himself and by voters as an ethnic German). In some places the Germans voted against Protestant Republicans; in others they voted against Irish Democrats. Germans were wooed by both political parties. One reason Abraham Lincoln was nominated by the Republicans in 1860 was that he had always opposed the nativism of the American (Know-Nothing) party, many of whose supporters had become Republicans: the Republican kingmakers wanted a candidate who could win German votes in New York, Pennsylvania, Ohio, and Indiana. Republicans promoted to the Cabinet Carl Schurz, a German immigrant with a political base in St. Louis’s German community.

German ethnicity survived as a political factor until well into the twentieth century. Many German Americans opposed American entry into WorldWar I and were understandably resentful of the heavy-handed, even authoritarian way in whichWoodrow Wilson’s administration suppressed German culture. In 1940 German Americans, though few were sympathetic to the Nazis, and Scandinavian Americans turned sharply against Franklin Roosevelt, fearful that he would produce war with Germany; this was the “isolationist” vote. But there were other German traditions as well. New York’s Senator Robert Wagner, born in Germany and a frequent visitor there, was an admirer of Germany’s social democratic tradition. He was one of the few Democratic officeholders in the early 1930s who supported welfare state measures (most others were progressive Republicans like Robert LaFollette Jr., from heavily German Wisconsin). Wagner was the lead sponsor of the Social Security Act and the National Labor Relations Act, which made possible the rise of the industrial unions.

The next great inrush of an ethnic group into the electorate resulted from the enfranchisement of the former slaves after the Civil War. Suddenly, with federal troops enforcing their rights, blacks were a majority of voters in South Carolina and Mississippi and large minorities in several other southern states. (There were few blacks in northern states, some of which had prohibited the settlement of free blacks; in 1870, 91 percent of blacks lived in the South.) Not surprisingly, they were overwhelmingly Republican, voting 90 percent or more for the party of the man who signed the Emancipation Proclamation. This black preference for the Republicans continued up through the 1930s; most blacks voted for Herbert Hoover over Franklin Roosevelt in 1932. But blacks switched to the Democratic party in the 1930s in thanks for New Deal programs and the pro–civil rights stance of some New Dealers—interestingly, the most prominent, Eleanor Roosevelt, Harold Ickes, and Henry Wallace, were all former Republicans themselves. It should be noted that Democratic percentages among blacks were not nearly as high in the 1940s and 1950s as they became starting in the 1964 election. John Kennedy won 63 percent of black votes, far below his 78 percent among Catholics, and such prominent blacks as Martin Luther King Sr. and Jackie Robinson supported Richard Nixon. But of course for many years most Americans of African descent were not allowed to vote. The inrush of blacks into the southern electorate in the 1860s and early 1870s was followed by moves by white Democrats to bar them from voting. Often these took the form of physical intimidation that might well be called terrorism; this persisted until the 1960s. Legal means were used as well: grandfather clauses, poll taxes, all-white Democratic primaries, literacy requirements administered discriminatorily.

In some southern cities—Memphis, New Orleans—blacks were allowed to vote on the understanding that they would vote as directed by white political bosses. In other southern cities—Richmond, Louisville—a tradition of black Republican voting continued. But for nearly 100 years most Americans of African descent were disenfranchised. In the 1930s blacks made up perhaps 3 percent of the national electorate; Jews, with 4 percent, were a larger voting bloc. In 1948 the benign competition to be seen as supporters of civil rights among Harry Truman, Thomas Dewey, and Henry Wallace was aimed politically more at Jewish voters in New York and other large and politically marginal northern states than at the mostly disenfranchised blacks in the politically mostly safely Democratic states of the South.

Inrush and disenfranchisement: this was the pattern for blacks, but it was, to a lesser extent, the pattern among Irish and other immigrant groups as well. By the late nineteenth century, noncitizens were no longer allowed to vote. Voter registration requirements were passed, literacy requirements were passed, party printing of ballots was prohibited—all at least partly to reduce the huge numbers of immigrants and ethnics voting. Voter participation— the percentage of the potential electorate voting—peaked in the 1890s and declined rapidly up through the 1920s. Even the enfranchisement of women was motivated in part by the belief that immigrant and Catholic women would not vote while white Protestants would, and so it turned out: Republicans carried Illinois in 1916, when, thanks to its enfranchisement of women, it cast more votes than any other state, and the Nineteenth Amendment, passed in 1919 (but never ratified by New York) swelled Republican percentages in the 1920s.

These methods of partial disenfranchisement also reduced voter participation by the eastern and southern European immigrants who began arriving in large numbers around 1880—the most numerous were Italians, Jews, and Poles. Like the Irish and unlike the Germans, they flocked almost exclusively to the industrial cities of the northeast and the Great Lakes; like the Germans and unlike the Irish, these immigrants developed checkerboard patterns of political allegiance. It was almost an odd-even phenomenon: in any given metropolitan area, the native Protestants tended to vote Republican, the second group (almost always the Irish) Democratic, the next group Republican, the next Democratic, and so forth. Thus, Italians in New Haven tended to vote Republican, Italians in Cleveland Democratic. Poles in Buffalo were Republican, in Detroit Democratic. In Philadelphia, which developed a strong Republican machine, almost every group tended to vote Republican; in New York, with its strong Democratic machine, most groups tended to vote Democratic.

The Jews were an exception, voting often for Socialists and other leftist candidates. In New York, repelled by the heavily Irish Tammany Hall, they voted for Social Democratic Fusion candidates, of whom the most prominent was Fiorello LaGuardia, a half-Italian, half-Jewish Episcopalian who was elected to Congress in the 1920s on the Republican and Socialist tickets and mayor in 1933, 1937, and 1941 on the Republican and American Labor party lines. In often marginal and fiercely contested New York, the Jews often held the key votes. This had national consequences, for if the Jews on the party spectrum stood between Upstate Protestants and New York City Catholics, on the issues spectrum they were well to the left of both groups—social democratic on economic issues, pro–civil rights and civil liberties on cultural issues. This helps to explain the leftish leanings of nationally important Democrats like Al Smith, RobertWagner, and Franklin Roosevelt and Republicans like Thomas Dewey and Nelson Rockefeller.

The New Deal changed the checkerboard voting patterns of these ethnic groups. Local loyalties were overshadowed by national issues, and all the groups became heavily Democratic by the late 1930s. Jews, poised between the two parties in the 1920s, became heavily Democratic by the 1940s, giving Roosevelt more than 80 percent of their votes; they remain heavily Democratic today, though a smaller proportion of the electorate (2 percent versus 4 percent). In time, ethnic groups like the Italians and Poles tended to regress to mean; after the elections of 1960 and 1964 they became much less heavily Democratic, like the Irish. This was part of a process of assimilation. Immigration was reduced to negligible levels by the immigration act of 1924, and there was no inrush of immigrant groups until after the law was revised in 1965.

At the time of Pearl Harbor, America seemed to have reached a pause in its racial and ethnic politics. But only a pause. For in the second half of the century, new groups entered the electorate, the groups that are now officially recognized as “minorities”—blacks, Hispanics, and Asians. On the surface this seems to have produced an altogether new “multicultural” politics, as predicted by Al Gore among others; some analysts proclaim with relish that white non-Hispanics will some time in the next century cease to be a majority and that “people of color” will control American politics. But on closer examination these new inrushes of voters have produced an ethnic politics closely, almost eerily, resembling the ethnic politics of 100 years ago. And the results are likely to be similar: one constituency remaining solidly Democratic for years, others the subject of benign competition between the parties, and ultimately regression to mean. First came the inrush of blacks into the electorate between 1940 and 1970. It was caused first by the huge migration of blacks from the rural South to the cities of the North and then by the end of the disenfranchisement of blacks in the South after passage of the Voting Rights Act of 1965.

Before 1940 there was relatively little migration of blacks to the North. In 1900, 90 percent of blacks still lived in the South; in 1940, in spite of some migration in World War I and the emergence of the visible black ghettoes of Harlem and South Side Chicago, 77 percent of blacks still lived in the South. But the war industries of the 1940s and the booming auto and steel factories of the 1950s and 1960s, whose unions strongly opposed racial discrimination, brought blacks north: the percentage of blacks living in the North rose from 23 percent in 1940 to 32 percent in 1950, 40 percent in 1960, and 47 percent in 1970. At that point, migration leveled off; as many blacks moved south as north, and the percentage in the North was still 47 percent in 1990. But for three decades the black move northward was one of the great migrations of American history.

These northward-moving blacks became the most heavily Democratic constituency in the nation—perhaps even more Democratic than the Irish at their most monopartisan. In some states their votes were actively sought by Republicans, notably Nelson Rockefeller in New York. But where civil rights was strongly championed by Democrats, like Governor Mennen Williams and UAW President Walter Reuther in Michigan, blacks were voting 90 percent or more Democratic in the 1950s. (Interestingly, Williams came from a Republican and Reuther from a Social Democratic family; neither had any connection with the laissez-faire Democratic party, which refused to interfere with either segregation or the saloon.) The Democratic percentage among blacks everywhere rose to around 90 percent when President Kennedy backed the civil rights bill in 1963 and when the Republican party’s presidential nominee, Barry Goldwater, voted against it in 1964 (and in spite of the fact that a higher proportion of congressional Republicans than of Democrats voted for it). Since then, blacks have enthusiastically supported the national Democrats’ antipoverty and big government programs. They have strongly supported race quotas and preferences, which were originated in the Nixon administration but have been supported enthusiastically by Democratic and opposed by some Republican politicians. They gave overwhelming percentages to Jimmy Carter, Walter Mondale, Michael Dukakis, and Bill Clinton and almost unanimously supported Clinton against charges of scandal in 1998. For the last third of the twentieth century, they have been the solid core of the Democratic party.

Then the passage of the Voting Rights Act of 1965 suddenly swept away all barriers against blacks voting in the South. Blacks rose from about 6 percent of the electorate in 1964 to 10 percent in 1968. But this did not have entirely positive effects for the Democrats, for in the same years, white Catholic voters were moving toward the Republicans. In part this was a natural regression to mean: the first Catholic president had been elected, and they were free to decide on other issues. But in part it was a reaction to the urban riots of 1964–1968, to the attacks by black politicians on mostly white police forces, to the school busing ordered by some federal judges in the North, to the antipoverty programs, which were closely associated with blacks.

In the meantime, southern white voters were moving rapidly away from the Democratic party. In part this was also a regression to mean: it was 100 years since Sherman marched through Georgia (John Kennedy’s number two state in 1960). But it was also in part a response to issues. Only a negligible number of southern whites wanted to restore segregation: the integration of public accommodations and workplaces ordered by the 1964 Civil Rights Act was accepted much more readily than almost anyone expected. But most southern whites did oppose the antipoverty programs at home and the national Democrats’ increasingly dovish policies abroad. This did not mean that black-backed candidates always lost in the South: Andrew Young was elected to Congress by a white-majority district in Atlanta as early as 1972. But just as Yankee Protestants united in voting against Irish-backed Democrats in Massachusetts in the early 1900s, so did white Southerners unite in voting against black-backed national Democrats in Mississippi in the 1970s.

The Voting Rights Act was not the only 1965 law that changed the shape of the American electorate. So did the 1965 immigration act, in ways that were almost entirely unforeseen. Many members voting for it may have expected a resumption of the European immigration so sharply cut off in 1924. But postwar Europe was prosperous and sent few immigrants. Instead they mostly came from Latin America and from Asia. Latin America accounted for 40 percent of immigrants in 1971–1980 and 39 percent in 1981–1993, Asia (including the Middle East) for 36 percent in 1971–1980 and 27 percent in 1981–1993.

Like the immigrant groups that followed the Irish from the 1850s to the 1920s, these new Hispanic and Asian groups did not flock almost unanimously as “people of color” to the Democratic party but produced a checkerboard pattern of political allegiances. Hispanics and Asians have not necessarily seen discrimination as their greatest problem and have not seen big government as their greatest friend; for them America has been not an oppressor but a haven. And some liberal policies have arguably worked against their interests. Poor public education and bilingual education programs that prevent children from learning how to speak, read, and write English well have arguably hurt Hispanics; racial quotas and preferences have clearly hurt Asians, just as they hurt Jews from the 1920s to the 1960s. It simply does not make sense to see today’s Hispanics and Asians as the counterparts of blacks during the civil rights revolution. Certainly, their political behavior is different. Blacks remain heavily Democratic, but the picture is quite different among Hispanics and Asians.

Hispanics on balance currently lean Democratic, but not everywhere, and by differing margins and for different reasons in different places. Asians have actually been trending Republican: they were the only group in exit polls to register a higher percentage for George Bush in 1992 than in 1988, and they voted by a narrow margin for Bob Dole over Bill Clinton in 1996. Today’s blacks, like the Irish of 100 years ago, have a history that gives them reason to doubt the legitimacy of the demands of the larger society— slavery and segregation in one case, anti-Catholic laws in the other. Like the Irish of 1900, the blacks of 2000 are concentrated heavily in ghettoized neighborhoods of big cities; even in the South, heavily black rural communities have continued to lose population, and an increasing percentage of southern blacks live in the region’s burgeoning metropolitan areas. To be sure, significant numbers of blacks have moved to suburbs—some to heavily black neighborhoods, others to mostly white areas—just as many Irish were moving out from Boston in 1900. But they are still more highly concentrated than any other identifiable ethnic group.

This has been reflected in political representation. In the 1990s redistricting the Voting Rights Act was interpreted as requiring the maximization of the number of majority-black districts, resulting in many convoluted district lines and a sharp increase in the number of black congressmen and state legislators. However, such districting also reduced the number of blacks in adjacent districts, and so arguably reduced the number of congressmen with an incentive to pay heed to black voters’ opinions. It also meant that most successful black politicians fell on the far left of the Democratic party, a comfortable place in majority-black constituencies but not a good position from which to seek statewide or national office; it is significant that the first black to lead in presidential polls was not Jesse Jackson, who rose through protest politics, but Colin Powell, who rose through the most integrated segment of American society, the United States Army.

The blacks of 2000, like the Irish of 1900, have had high rates of crime and substance abuse; they have also produced large numbers of police officers and an influential clergy. They have produced many great athletes and entertainers and a cultural style that most Americans find attractive. They have tended not to perform well in economic markets, but they have shown an affinity for rising in hierarchies, particularly the public sector and in electoral politics. California, which is only 7 percent black, has over the past twenty years produced a black lieutenant governor and a black Assembly speaker, black mayors of Los Angeles and San Francisco, and came within 1 percent of electing a black governor in 1982. And of course blacks in 2000, like the Irish in 1900, are one of the main core constituencies of the Democratic party, although blacks are still awaiting, as the Irish were a century ago, their Al Smith and John F. Kennedy.

The blacks of 2000, like the Irish of 1900, show no sign of abandoning their overwhelming allegiance to the Democratic party. Republican percentages among blacks have risen in the last two decades, but only very slightly except for a few unusual elections in a few states. Indeed, allegiance to liberal Democratic ideas seems stronger among more educated and affluent blacks than among others; yet the cultural conservatism of many higher religious blacks has not translated into support for Republican candidates to any substantial extent. Regression to mean still seems a long time ahead in the future.

Today’s Hispanics, like the Italians of 1900, come from societies with traditions of ineffective centralism, in which neither public nor private institutions can be trusted to act fairly or impartially; southern Italians and Latin Americans were all subjects of the Emperor Charles V. Like the Italians, the Hispanics have migrated vast distances geographically and psychologically, moving from isolated and backward farming villages to particular city neighborhoods pioneered by relatives and neighbors from home. The Hispanics of 2000, like the Italians of 1900, tend to be concentrated in only a few states (even today, half of all Italian Americans live within 100 miles of New York City): more than three-quarters of Hispanics live in California, Texas, New York, Florida, and Illinois. Here they often maintain contact with their old homes, sending back remittances and in many cases returning; their commitment to remaining in the United States is in many cases not total. They often have strong religious faith, but they tend to mistrust most institutions, including government and businesses. They work exceedingly hard, and often with great pride in craftsmanship, but often do not seek to rise economically and tend to drop out of school early. They depend on family and hard work to make their way.

Politically, the Hispanics of 2000, like the Italians of 1900, tend to vote for different parties in different cities. Cubans in Miami are heavily Republican, Puerto Ricans in New York heavily Democratic. There are rivalries as well between different Hispanic groups: in New York Dominicans may overtake Puerto Ricans as the leading Hispanic group, while in Chicago the North Side Puerto Ricans currently have an edge over the South Side Mexicans.

Most important are the sharp differences between the politics of Latinos in the two largest states, Texas and California. Mexican Americans in Texas, some of whom have deep roots in local communities and churches, elect Republican and conservative Democratic congressmen and legislators as often as liberal Democrats and in 1998 polls were shown casting majorities for Republican Governor George W. Bush. The pro-Bush feeling can be attributed to his fluent Spanish, his frequent visits to Hispanic communities, his policy of close ties with Mexico, his emphasis on family and hard work—his showing that he understands and appreciates the Latinos’ strengths. It also may rest on the fact that relations between Anglos and Latinos in Texas, for all its past history, have been relatively close and friendly: almost nobody doubts that Latinos are truly Texans.

In contrast, Mexican Americans in California often seem to live in a nation apart and are met with a certain hostility by Anglo elites, from the leftish Jews of Los Angeles’s Westside to the rightish whites living in gated communities in the outer edges of metro Los Angeles, to San Diego surfers worried about the discharges of Tijuana’s sewage on their beaches. California’s Latinos tend to live in enormous swaths of metro L.A. that until very recently had few Latinos, in atomized local communities where politics is waged by direct mail financed by rich liberals. The candidates they elect tend to come from a small group of politically connected Latino Left Democrats.

In addition, California Latinos were repelled by the 1994 campaign of Republican Governor Pete Wilson and his support of Proposition 187, barring aid to illegal immigrants. What bothered them was less the substance of the issue (some 30 percent of Latinos voted for it) but the implication they saw in Wilson’s ads that immigrants were coming to California only to get on the welfare rolls. “He’s saying we’re lazy,” as one Latino businessman put it, although in fact Hispanic men have the highest workforce participation rate of any measured group. Wilson’s failure to appreciate the genuine strengths of California’s Latinos and, until 1998, at least, California Republicans’ apparent lack of interest in them have produced higher Democratic percentages among Latinos there in the late 1990s than in the middle 1980s—an ominous sign for national Republicans because Latino turnout has been rising sharply, and without a sizable share of Latino votes a Republican presidential ticket will have trouble carrying California.

Latino voters could turn out to be the focus of the 2000 presidential race. If the Republicans nominate Bush, they would have a good chance of turning around the Mexican American vote in California, in consolidating Cuban American support in Florida (where his brother Jeb Bush was elected governor in 1998), and in making inroads among Latinos in other large states. The Democrats may counter that by nominating for vice president Energy Secretary Bill Richardson, former New Mexico congressman and ambassador to the United Nations, who, despite his name, is Hispanic. There is a historic precedent, the focus by both Democratic and Republican strategists on Jewish voters in 1948.

Finally, the Asian Americans of 2000 in many ways resemble the Jews of 1900. The Asians, like the Jews, come from places with ancient traditions of great learning and sophistication but with little experience with an independent civil society or a reliable rule of law. Like the Jews, many Asians in this century—overseas Chinese, Vietnamese, Koreans, Moslems and Hindus in India and Pakistan—have been subject to persecution and have had to make their way in the world amid grave dangers. They tend to excel at academic studies and have quickly earned many places at universities— and have been greeted by quotas that bar them in spite of their achievements. They have had great economic success and perform well in economic markets. Like the Jews, they tend to be concentrated in a few places—in the great metropolitan areas of California, in New York City, around Washington, D.C., Chicago, and Houston. (The Japanese Americans of Hawaii are mostly descended from immigrants who arrived in the late nineteenth and early twentieth centuries.)

Politically, the Asians have been taking a different route from the Jews. Few, aside from some campus activists, have been attracted to left-wing causes; some but not very many (the Japanese Americans in Hawaii) have been staunch organization Democrats. Asians with a history of anticommunism have voted mostly Republican: Koreans, Vietnamese, Taiwanese. Filipinos, mostly in low-income jobs and subject to discrimination by Americans for a century, have been heavily Democratic. The Asian trend toward Republican in the 1990s has not been much studied and is a bit mysterious. Contributing to it may be the Los Angeles riots (in which the Los Angeles elite tended to portray the rioters as victims and the shop owners of Koreatown as oppressors) and the racial quotas and preferences that bar so many Asians from places in universities. The Jews, after all, reacted against the quotas of a Republican Protestant elite by voting Democratic ever after; the Asians may be reacting against the quotas of a Democratic liberal elite by voting Republican for many years. Similarly, the Jews, understandably on the alert for possible persecutors, believed they would come mostly from the political right wing; Asians may see their threat coming from big city rioters and murderers who are not held responsible by local juries for their crimes.

The experience of the immigrants of 100 years ago should give us at least cautious optimism about the future course of the minorities of today. The high rates of crime and substance abuse among the Irish receded after some time; crime rates and welfare dependency among blacks have experienced a sudden and sharp decline in the 1990s. The aversion to education and economic advancement of Italian Americans waned in time, and in spite of the civic poverty of their homeland and the dire predictions of elites earlier in this century the Italians have blended in well to American life; there is good reason to think the same will happen to today’s Latinos.

The Jews, early in scaling the economic and academic heights, have seen discrimination and anti-Semitism diminish down toward nothing; the Asians may find the barriers they face receding as well. Politically, all these new Americans have the advantage of living in a society where there is a tremendous political penalty for shows of intolerance and ethnic discrimination, and in which both political parties have an incentive to seek their support. There will be times when ethnic conflicts in politics will be wrenching, but American history also teaches us that ethnic competition in politics can very often be benign and in any case is as American as apple pie (or pizza or tacos).

==============================

The Politics of Racial Preferences

DAVID BRADY

In their successful drive to eliminate racial preferences in the public sector, opponents of race-based policies in California and the state ofWashington turned not to the legislature but directly to the voters. That is, they organized a ballot initiative and, by that mechanism, altered state constitutions. But such referenda have their detractors. Critics argue that both California’s Proposition 209 andWashington’s Initiative 200 gave voters a crude up-or-down choice.1 “The State shall not discriminate against, or grant preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting,” the initiatives read. Agree or disagree? voters were asked. In contrast to a referendum, the argument runs, legislatures are arenas for negotiation and compromise— for lawmaking with greater subtlety.

The point has seeming plausibility. But faced with politically tricky issues—like that of racial preferences—a legislator’s natural tendency is to go with the status quo. Legislatures are risk-adverse. Thus, without the referendum process, citizens would be severely limited in their ability to express themselves on critical and controversial questions such as affirmative action.

From one perspective, opposition to racial and gender preferences would seem politically safe. Most Americans don’t like them. And yet a close look at survey data reveals a more complicated landscape. The response of those polled depends on precisely how the question is worded. The term “quotas,” for instance, elicits a very different reaction from the phrase “affirmative action.” In general, questions involving race tap into considerable ambivalence. Most Americans, that is, understand the history of black oppression and are sensitive to the need to acknowledge grave wrongs; they do not think African Americans have attained full equality. But most also believe in a meritocracy that awards individual initiative and hard work. They believe in equal treatment but not race-based preferences.2

With respect to race-related public policy, most Americans are thus torn. And as legislators outside California andWashington know, the antipreference initiatives in those states did not pass by large margins. Proposition 209, on the California ballot in November 1996, got only 54 percent of the vote. It is no surprise, then, that in 1998, when Senator Mitch McConnell (R-Kentucky) introduced an amendment that would have eliminated the 10 percent racial and gender set-aside embedded in a massive highway bill, he met with defeat.3 Even though the Supreme Court, in 1995, had ruled that financial incentives to hire minority subcontractors for federal highway construction projects were unconstitutional, the Senate voted 58 to 37 against the McConnell proposal.4 Moreover, 15 Republicans joined 43 Democrats in voting to kill the amendment. The view of those 15 was that of John McCain. “Unfortunately,” the Arizona senator said, “the danger exists that our aspirations and intentions will be misperceived . . . harming our party.”5

Members of Congress don’t like bills that potentially harm their party. Their skittishness involves issues other than race, of course. On technical issues like the omnibus Communications Act of 1995 or legislation to set standards for high-density television, members delegate crucial decisions to bureaucracies; if something goes wrong, they can hold hearings and blame the administrators. The question of high-density television (HDTV) is instructive because there were only three transmission standards to choose from: American, European, and Japanese. Because Europeans and the Japanese don’t vote in American elections, it might seem obvious that the American standard was preferable—but not necessarily. In the case of VCRs, the Japanese manufacturers had beaten all other competition; if the same thing happened with HDTVs, a decision in Congress to adopt American technology could have been politically costly. The result: a legislative decision to pass the buck. The market could sort the problem out.

Legislators understand policies, but they cannot gauge with certainty the impact of a particular policy on their reelection prospects. In the debate over the Clinton health care plan in 1993 and 1994, members of Congress could not accurately predict, for instance, how managed care would affect the freedom of patients to choose a doctor. As two Democrats on the House commerce committee said at the time, “If two or three years from now, Mr. and Mrs. Smith don’t have their doctor, you can bet I’ll have an opponent in the primary or [the] general [election] blaming me for it.”6 Neither congressman supported the Clinton or Cooper bills.

Race is potentially an even more explosive issue. Support for legislation that abolishes racial and gender preferences—if the statutory language is framed in the wrong way—can be depicted as racially insensitive, if not positively mean-spirited. But opposing such a bill is also politically risky: supporting preferences over merit may invite opposition in the next election. Members of Congress do not want to appear as “against” civil rights, but neither are they eager to seem to be “for quotas.”

Politicians are in fact doubly vulnerable. The strange American phenomenon of democracy within a party (primary elections as the vehicle for party nominations) means that incumbents can face opposition in both primaries and general elections. There is another danger as well. The majority of voters in a district may favor an antipreference statute. But if the district is, say, 10 to 20 percent black, white Democrats who support such legislation not only risk an opponent in the primary, but they also court depressed minority turnout in the general election. They may get their party nomination, only to find themselves stripped of needed black support.

Moreover, Republicans, too, can pay a political price for supporting a legislative move to abolish set-asides and other race-based programs. Whatever position they take will invite opposition. For candidates of either party, the problem is especially acute in competitive districts; thus, the narrower the incumbent’s margin of victory, the more risk-adverse he (or she) is likely to be. The politically vulnerable do not want to vote on controversial legislation.

Politicians like secure seats, and obviously don’t like to cast votes for bills on issues—like that of race—that inevitably generate controversy. Racial preferences are thus an unlikely subject for legislative action; the initiative process appears to be the only means by which they can be attacked. That means, of course, that federal affirmative action statutes are safe because the Constitution does not provide for national referenda on questions of policy. A good thing, too, critics of state referenda will say. They argue that legislatures can deal with complex issues and the multiple interests that surround them. A process that simplifies the question makes for bad policy. Without a referendum process, however, politically charged policies opposed by the majority of voters, or policies about which voters are ambivalent, will remain in place—unless, of course, a court steps in, as the U.S. District Court of Appeals of the Fifth Circuit did, when it abolished racial preferences in institutions of higher education in Texas.

Table 1 Support for P-209 and I-200 over Time (in percents)

*P-209 (Calif.)*	*7/96*	*9/16/96*	*11/4/96*
For	59	60	52
Against	29	25	38
Undecided	12	15	10
*I-200 (Wash.)*	*7/13/98*	*9/14/98*	*10/9/98*
For	64	53	55
Against	25	34	35
Undecided	11	13	10

Source: Based on data from polls conducted by the Los Angeles Times in California and by the Seattle Times in Washington state over the course of the campaigns.

The story of I-200 in the state of Washington is instructive. In March 1997, state representative Scott Smith and a small business owner, Tim Eyman, filed the initiative with the legislature, which meant that if they collected enough signatures, the lawmakers would have to approve the bill or put it on the ballot in November 1998. The bill prohibited preferences based on race or gender in state employment, in the awarding of state contracts, and in the admission of students to public institutions of higher education. Indeed, the language was identical to that of Proposition 209, which had amended the California state constitution. By early January 1998, over 280,000 signatures had been submitted to the secretary of state (only 179,248 were actually needed), but, although voter approval was running two to one in favor of the measure, the Republican-controlled legislature declined to take a stand on the issue.

Perhaps legislators knew that extraordinary support for such initiatives in the early months is a bit deceptive. In California, four months before the election (in July 1996), 59 percent of voters backed Proposition 209; in July 1998, 65 percent of the Washington electorate liked I-200. In both cases, however, as the elections drew near, the numbers went down (see Table 1). In Washington, political leadership may have been a factor; the governor and the mayor of Seattle were strong opponents. But enthusiasm also waned in California where Governor Pete Wilson campaigned for the proposition.

Women were an unknown political element, and that uncertainty could have made legislators nervous. If white and minority women came together against the measure, it would go down. As it happened, the opposition was unable to mobilize the female vote. As Table 2 shows, in California, prior to the election, 58 percent of whites and 54 percent of women favored Proposition 209; inWashington, the numbers were 55 and 59, respectively. By November, support by women had slipped somewhat but was still unexpectedly high.

Table 2 Preelection Racial and Gender Gaps on P-209 and I-200 (in percents)

	P-209 (Calif.)		I-200 (Wash.)
*Category*	*For*	*Against/DK*	*For*	*Against/DK*
White	58	42	55	45
Nonwhite	29	71	37	63
Male	67	33	70	30
Female	54	46	59	41

Source: Based on data from polls conducted by the Los Angeles Times and the Seattle Times.

I-200 opponents had argued that gender inequality was real and that preferences were in their interest. “The biggest beneficiaries of affirmative action in Washington State are white women, and women know that discrimination still exists. The problem is that people still don’t know what this deceptive initiative is about,” Kelly Evans, the manager of the NO! 200 Campaign said a month before the election.7 And perhaps there was indeed some confusion. A month earlier, a survey indicated that half the voters in the state favored affirmative action, while almost 60 percent intended to vote for I-200. Those were simply incompatible positions, as the pollster who conducted the poll stated: “It’s clear that some voters don’t know exactly what this initiative is going to do.”8

When the actual wording of I-200 was read to respondents, 53 percent supported the initiative, 34 percent were opposed, and the rest were undecided. When asked in a separate question how they felt about affirmative action, 50 percent said they were in favor. Given the ambivalence of most Americans on issues related to race, the precise wording of the question matters. About half the electorate in that survey registered support for some sort of special consideration for disadvantaged groups, but more than half disagreed with the notion of granting preferences. Race is still the American dilemma—acknowledged as such—but there is no agreement over what the political response should be. Legislative action thus remains politically risky.

Table 3 The Vote for Proposition 209 (in percents)

	*Yes on 209*	*No on 209*	*% of all voters*
All voters	54	46	100
*Race*
White	63	37	74
Black	26	74	7
Latino	24	76	10
Asian	39	61	5
*Ideology*
Liberal	27	73	21
Moderate	52	48	47
Conservative	77	23	32
*Gender*
Male	61	39	47
Female	48	52	53

Source: Based on polls conducted in California by the Los Angeles Times.

At the end of the day, however, the initiatives won comfortably in both states, with 54 percent of the vote in California and a 58 percent majority in Washington. The victory in Washington was especially striking: the political and media establishment was opposed, and the proponents were outspent three to one. Nevertheless, exit polls showed that 66 percent of men and 80 percent of Republicans supported the initiative. Surprisingly, 62 percent of the Independents and 54 percent of union members also voted yes. Women divided evenly on the issue, while over 40 percent of Democrats cast their ballots in favor.9 In California, as Table 3 shows, support for the measure came from whites (63 percent), political moderates (52 percent), conservatives (77 percent), and males (61 percent). Less than half of women (48 percent) and about a quarter of the liberals (27 percent) voted for it. As expected, blacks, Latinos, and Asians, in decreasing magnitude, were also opposed, although their support did not drop below 25 percent in either state. Their opposition had more impact in California (where minorities make up half the population) than in Washington (84 percent white).

The leadership in the initiative drives interpreted the final tally as an antipreferences vote. Thus, Ward Connerly, who led the movement in California and played a very important role inWashington, saw the American people as “beginning to rethink the whole question of race and affirmative action.” He went on, “The three main rationales for affirmative action—compensation for the discrimination of the past, current discrimination, and diversity—aren’t acceptable to people any more.”10 Opponents, on the other hand, blamed the allegedly misleading and confusing language of the two initiatives for their defeat. Washington’s governor, Gary Locke, described opponents’ effort as “always an uphill battle because the ballot title was motherhood and apple pie.” People asked themselves, “How can I disagree with that?” and thought, “I very much support an end to discrimination.” Sue Tupper, the chief consultant for NO! 200, said, “We really had to work day and night to clarify what kinds of programs would go away if this initiative passed.”11

Which side was right? Did voters know what they were doing—declaring their opposition to racial and gender preferences—or were they confused by “motherhood and apple pie” rhetoric? Perhaps the question should be put slightly differently: Did supporters understand that signing on a measure that prohibited discriminatory policies of every sort (including those that distributed benefits on the basis of race or gender) would mean an end to “affirmative action,” as commonly practiced? The rhetoric was appealing because it did indeed embrace basic American values, as I-200 opponents lamented. Did the majority of voters mean to reaffirm those values?

Yes, postelection surveys suggest. The two main reasons voters gave for supporting I-200 were a belief that it would end preferential treatment and that it would ensure fairness and equality in the way government and public universities operate. They wanted a change in existing programs. At the same time, however, they seemed to believe that the revised law would allow some form of affirmative action. Thus, among I-200 backers, twothirds thought the measure would not ban all minority-targeted programs. As one voter put it, “Minority goals in employment and student admissions can still be achieved under I-200. The secret is recruitment, training, and accomplishment.” In other words: help, yes; preferences, no. Only a small minority of the electorate seemed totally confused about what they voted for. Seven percent of the initiative’s supporters said they wanted affirmative action programs unchanged, while 10 percent of those opposed to prohibiting preferences said that in fact they wanted them eliminated.12

Identical initiatives have passed in two states, and the decision of the majority of voters will not be overturned, it appears. In California, a federal district court issued a preliminary injunction blocking implementation of the initiative, a decision that was subsequently reversed by the U.S. Court of Appeals for the Ninth Circuit. The U.S. Supreme Court declined to take the case. Student protests appear to have fallen flat. In the 1998 gubernatorial race, neither Dan Lundgren, a conservative Republican, nor Gray Davis, a former aide to the very liberal Jerry Brown, focused on the issue. Although Davis reminded congregants at black churches just prior to the election that he opposed 209 and promised that appointments to state jobs in his administration would reflect the diversity of the state, he did not say he would try to circumvent the law. “One thing I’ve learned in my years, of service,” he said, “is when the people speak—at least on Earth—they are the final word.”13 And on 209, the people had spoken.

On the other hand, the University of California system—in keeping with the desire of most voters—is looking for alternative ways to create “diversity.”

Notes

1. The best and most influential work arguing against referenda is Peter Shrag,

Paradise Lost (New York: New Press, 1998).

2. On the public’s complicated views on issues involving race, see Paul M. Sniderman

and Thomas Piazza, The Scar of Race (Cambridge, Mass.: Harvard University

Press, 1993).

3. The McConnellamendmentwould have eliminated the DisadvantagedBusiness

Enterprise (DBE) program from the bill that renewed funding for the Intermodal

Surface Transportation Efficiency Act, otherwise known as ISTEA (pronounced “icetea”).

The DBE provision required that no less than 10 percent of federal highway and

transportation money go to firms owned by minorities and women. Congress voted

on the ISTEA amendment eight months before the referendum in Washington on I-200, but the voters’ rejection of preferences, once again, probably would not have made

any difference.

4. The decision was Adarand Constructors, Inc. v. Pen˜a, 515 U.S. 200 (1995).

5. Helen Dewar, “Minority Set-Asides Survives in Senate,”WashingtonPost, March

7, 1998, p. 1.

6. Personal interview with author.

7. “Initiative 200 Favored in Poll; Affirmative Action Ban in State Has 55 Percent

Support,” Seattle Post-Intelligencer, October 9, 1998, p. A1.

8. “Most in Poll Support I-200; But Half Defend Affirmative Action,” ibid., September

14, 1998, p. A1.

9. TomBrune, “Poll: I-200 PassageWas Call for Reform,” Seattle Times, November

4, 1998, p. A1.

10. “Affirmative Action Rules Tossed Out by StateVoters,” Seattle Post-Intelligencer,

November 4, 1998, p. A1.

11. Ibid.

12. Brune, “Poll: I-200 PassageWas Call for Reform.”

13. Dan Smith and Amy Chance, “Davis Smells Victory; Lungren Sees Rebound,”

Sacramento Bee, October 26, 1998, p. A3.

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From Protest to Politics: Still an Issue for Black Leadership

TAMAR JACOBY

In politics, as in many other aspects of civic life, America has come a long way since the civil rights era. In the years since the 1965 Voting Rights Act, the number of black elected officials has grown from under 100 to nearly 9,000, while black voter registration has soared, particularly in the South. (Even in the southern states that began with the best numbers, registration has doubled and, in some places, multiplied by a factor of ten.)1 Yet, for all the increase in participation and political sophistication, the nation’s black leadership is still in a state of transition from “outsider” to “insider” politics—still caught between the appeal of expressive, symbolic protest tactics and the challenges of effective, problemsolving governance.

Nothing captures the uncertain moment better than the election in 1998 of Anthony A. Williams as mayor of the District of Columbia. The reserved, Harvard-educated former city financial officer was hailed even before he was elected as one of a “new breed” of black mayors: low-profile, nonideological, “technocratic” city executives who eschew racial politics for managerial savvy. Like Detroit’s Dennis Archer, Cleveland’s Michael White, and Denver’s Wellington Webb, among others, Williams campaigned on a promise of efficient government and fiscal solvency. Before and after the election, in front of both blacks and whites, he emphasized the need “to bring everybody in our city together.”2 Unlike his confrontational predecessor, Marion Barry, he avoided color-coded power plays, and his low-keyed, fiscally minded campaign paid off handsomely in support from middle-class white voters. To many, in the city and further afield, Williams’s election seemed a triumph for black politics—a victory, finally, for responsibility over theatrics and for sober-minded government over empty millennial promises.

The only problem was that many poor, blackWashingtonians were at best indifferent, if not hostile, to their new mayor. In the Democratic primary, tantamount to the election in the overwhelming Democratic District, 70 percent of the majority-black electorate stayed home. Worse still, though Williams dominated in better-off white enclaves, winning by a factor of four to one, he managed only to split the vote in middle-class black areas, as he lost outright in the poorest black neighborhoods east of the Anacostia River.3 In the wake of his victory, several black newspaper columnists assailed the outcome. “The eastern sections of town are downright disillusioned,” one critic wrote bitterly, denouncing Williams as a traitor and a tool of the white establishment whose budgetary restraint could only be bad for black people.4 (Williams did little better among poor blacks in the general election, once again eliciting a heavy turnout in affluent, white neighborhoods, while only one in four voters from across the Anacostia bothered to come out to vote for him.)

It was a small pocket of dissent, seemingly inconsequential in the short run—Williams was elected by a healthy margin—but potentially ominous for the longer-term future. For years now, well-meaning whites and a handful of black intellectuals have bemoaned the state of the nation’s black leadership, elected and otherwise. In the wake of the civil rights era, this conventional wisdom held; no one had emerged to guide the later, more difficult stage of the black struggle for inclusion. Instead, angry and often corrupt, race-baiting demagogues had taken over and misled impressionable followers, ushering in an era of urban decline, stalled race relations, and divisive identity politics, among other ills. Disturbing as it was, in its way, this was a hopeful diagnosis because it meant that change at the top could ease many of the black community’s remaining problems. But the experience of the new mayors, Williams included, tells a more complicated story. Whatever the flaws of the older generation of angry, color-conscious spokesmen, they have an enduring appeal for a certain segment of the black population, and as long as their brand of divisive racial politics plays in the inner city and elsewhere, the transition from outside to inside leadership will never be complete.

Thirty-five years after the passage of the great civil rights laws, the oldstyle “outside” leadership is no longer as explicitly radical as it once was. Except for an occasional, high-profile demonstration, by now the movement has come in off the streets, and few black spokesmen still talk about overturning or seceding from the system. But black protest politics haven’t disappeared; they’ve just gone under cover. The new breed of black mayors is still the exception, not the rule. Most black members of Congress and most executives of the NAACP, the National Urban League, and Jesse Jackson’s Rainbow/PUSH Coalition still view the world in color-coded terms and, even when they have chosen to work within the system, still see their jobs as essentially protest by another means. Their methods, as often as not, are confrontational; their stock-in-trade is racial grievance and racial remedies. Like many insurrectionary or protest movements, they brook little dissent within their ranks. (Those with differing views, like Supreme Court Justice Clarence Thomas and California businessman Ward Connerly, are castigated as race traitors.) And whatever their success in delivering for their people, they still command respect as racial champions willing to stand up to power.

Yet, popular as the old-style leadership may be, a number of signs suggest that it is no longer truly in step with the people it claims to represent. On educational issues, all-important to black advancement, one recent survey found that 84 percent of rank-and-file blacks believed parents should be able to send their children to a school of their choosing, whether public or parochial.5 But most national black leaders—in Congress and the major civil rights organizations—vigorously oppose school choice of any kind. On crime, another survey found 73 percent of black respondents in favor of “three strikes and you’re out” laws that sentence thrice-convicted violent criminals to life imprisonment.6 Yet when this issue came up for a vote on Capitol Hill in 1993, the Congressional Black Caucus voted overwhelmingly against the sterner penalties. On welfare, 91 percent of blacks are in favor of requiring able-bodied recipients to work for their benefits.7 But when welfare reform came to the floor in Congress, in 1996, only three out of nearly forty black Democrats voted for it.

This gap is at least two decades old, and, if anything, it is getting wider. It is often seen, in ideological terms, as a gap between liberal leaders and a more conservative community, and there is something to that: the black population also differs from most of its spokesmen on questions of abortion and school prayer and, indeed, how one labels oneself politically. (Though the black rank and file almost never votes Republican, in ideological orientation, by its own account, it is evenly divided—32 percent conservative, 32 percent liberal, 32 percent moderate8—while virtually no one in the civil rights establishment would use the C-word to describe themselves.) But to see the divide in purely partisan terms is to miss its deeper philosophical significance: a critical, growing difference in assumptions about what exactly ails the black community and what can most usefully be done to fix it.

Perhaps the most striking aspect of the leadership gap was first unearthed in 1985 when an American Enterprise Institute poll found that 66 percent of rank-and-file black respondents felt that blacks as a group were “making progress” in America, whereas 61 percent of their spokesmen said that as a whole the group was “going backwards.”9 The same division appeared again a year later when a survey by two national news organizations asked ordinary blacks how much discrimination they faced in their daily lives, and sizable majorities answered, in effect, “relatively little.” (Seventy-five percent experienced no discrimination in “getting a quality education,” 73 percent experienced no discrimination in “getting decent housing,” 60 percent experienced no discrimination in “getting a job,” and 57 percent experienced no discrimination in “getting equal wages” for their work.)10 In contrast, if one listens to the national black leadership, one would believe that discrimination and enduring “institutional racism” dominate the lives of every black American.

The difference is critical, not so much as a gauge of bigotry but because of what it says about most blacks’ hopes and expectations for their own lives. Though few black politicians explicitly discourage followers from taking advantage of opportunity, if the leadership’s dire picture is correct, then there is little point for blacks in making much personal effort: no matter how hard one tries at school or work, no matter how talented you are, in the end, “the system” is always going to hold you back and limit your possibilities for achievement. But apparently most of the black rank and file harbor some doubts about this demoralizing vision of America. Whatever skepticism or anger they feel, and whatever discrimination they have faced in their lives, the polls suggest that ultimately they are far more optimistic than their leadership—an optimism reflected in their gradually shifting personal and political strategies.

As their responses to questions about education, crime, and welfare show, more and more ordinary blacks feel that the road ahead runs through personal responsibility and what in another context is called “development”— schooling, work, community-building, and a stake in the status quo. Though much black leadership remains committed to a strategy of agitation from outside to change the system—protest, legal challenges, economic boycotts, and the like—ordinary blacks seem increasingly committed to making their way from within, using the system to their own advantage and sharing in its fruits.

This shift has drawn little attention, and it is far from complete, but it is already producing a measure of ferment across black America. There is a growing sense among black scholars on both the right and the left that the civil rights establishment is not serving the interests of ordinary blacks. Political scientists as ideologically diverse as Harvard’s Martin Kilson, Columbia’s Manning Marable, and San Francisco State’s Robert C. Smith have all voiced bitter criticism of their community’s alleged spokesmen. Kilson denounces not just the “lawbreaking and norm-flouting” of many black elected officials, but also what he sees as a kind of nationalist “immaturity on the part of the black leadership . . . an ethnographic solidarity [that] is both misplaced in a pluralistic democracy and politically counterproductive.” Smith, whose book on the subject is entitled bluntly, We Have No Leaders, complains that the political class is so committed to “symbolic” gestures and “the politics of personality” that it is largely “irrelevant in post-civil rights era national politics.” These and other black critics differ over whether their leadership is too radical or too conservative, too preoccupied with defending affirmative action or not attentive enough, too concerned with their own power and prerogatives or too enthralled with identity politics. But all agree that the real needs of the black poor—whether for better schools or jobs or police protection—are being sorely neglected.11 Meanwhile, like all Americans, black voters are showing less and less interest in electoral politics. Black turnout is notoriously volatile, dependent on spikes of enthusiasm—and distaste—for individual candidates.

But even when black participation runs high, as it did in 1998, it remains slightly lower than national turnout figures, which were lower in 1998 than they had been any year since 1942.12 Queried by journalists, many blacks express dissatisfaction with the relentlessly color-coded concerns of their elected officials: “Most issues should not be defined as black or white,” Atlanta realtor Terry Tate, among others, told aWall Street Journal reporter surveying national sentiment. “We all need jobs, we all need safety, we all need to be rid of the scourge of drugs.”13 And in many cities, rather than rallying to politicians, the black rank and file is now turning instead to urban ministers like Rev. Eugene Rivers of Boston and Rev. Floyd Flake of New York (a retired U.S. congressman) who use their church coffers and bully pulpits to promote an agenda of self-help and community development.

What’s complicated is that, like any group undergoing a major change, many blacks are still ambivalent and uncertain, confused about what exactly their people need and what they want from their leaders. The men who attended Rev. Louis Farrakhan’s 1995 Million Man March brought this uncertainty home for all America to see. As much as anything, it was clear, the ideology that drove these men was about self-help: the issues of personal responsibility and accomplishment and community-building that Farrakhan evoked when he talked about “atonement.” The irony is that all these themes have been staple fare among black conservatives for more than two decades now. But unlike Farrakhan, virtually no conservative black spokesmen could produce enough followers to hold a rally—in large part because their prescriptions come without the angry edge that Farrakhan specializes in. In the long run, that hate-filled, race-baiting rhetoric is antithetical to a real push for self-help and development. (The more you blame “the system” for holding you back, the less likely you will be to take full responsibility for your own life.) Yet the men who traveled toWashington for the Million Man March didn’t want to have to choose between protest and self-help. They thrilled to Farrakhan’s angry outsider’s politics—and wanted to work the system, too. Uncertain which way to go, they held fast to both antithetical options.

Theirs isn’t an uncommon ambivalence. However much the black rank and file may differ from its leaders on important questions like education, crime, and welfare reform, they reelect members of the Congressional Black Caucus by overwhelming margins. (Once they’ve won a place in Congress, half of all caucus members run unopposed in either the next primary or general election, and their average margin of victory falls in the 80 percent range.) Technocratic “crossover” mayors like Anthony Williams have been running and winning elections for more than a decade now, but they almost never inspire a large, enthusiastic black turnout either in middle-class neighborhoods or in poorer parts of town, and many find it hard to win a second term or to rally black voters when they try for higher office. Meanwhile, at the other end of the spectrum, flamboyant race-baiting street leaders like New York’s Rev. Al Sharpton and Khalid Abdul Muhammad command only a very small following. In spite of repeated tries for office— for U.S. senator and mayor—Sharpton has never garnered more than 130,000 votes in all of New York City or New York state, and Muhammad’s so-called “million youth marches” in Harlem in 1998 and 1999 drew no more than a few thousand followers. But, except in the rarest of circumstances, neither rank-and-file blacks nor more respectable black elected officials dare to denounce demagogic race men like Sharpton and Farrakhan. To do so would be implicitly to repudiate the anger they trade in— an anger that still galvanizes blacks of all classes.

Which trend is stronger—the commitment to self-help and development or the angry alienation? It’s hard to say, and it would be a grave mistake to underestimate black estrangement. Every TV viewer remembers the black reaction to the O. J. Simpson verdict. Millions of black Americans, poor and better-off alike, still believe that “white society” has a “plan” to destroy them. According to one 1990 poll, 29 percent think it is or “might be” true that “the virus which causes AIDS was deliberately created in a laboratory in order to infect black people”; 58 percent think it’s true or likely that “the government deliberately makes sure that drugs are easily available in poor black neighborhoods in order to harm black people”; and 77 percent believe it’s possible that “the government deliberately singles out and investigates black elected officials in order to discredit them in a way it doesn’t do with white officials.”14 Surprisingly enough, educated, middle-class blacks are even more likely than the poor to harbor these paranoid fantasies. And both the poor and the better-off are often suspicious of plans for the economic revival of black neighborhoods. Though it would bring jobs and stores and opportunity where now there are none, many residents of places like Harlem and the majority-black city of Detroit fear that development will inevitably mean economic exploitation of blacks by whites—and, if so, they would rather forego the prosperity. Indeed, much of the black opposition to technocratic mayors like Anthony Williams and Detroit’s Dennis Archer turns on just this sort of economic nationalism: because he advocates fiscal solvency and color-neutral economic growth, Williams is denounced by both poor and better-off blacks as a “bandit” whose policies will usher in an era of “occupation.”15

Still, in the long run, the appeal of the technocratic mayors lies in their pragmatism, and, for all the alienation of better-off blacks, it is an appeal that should only grow as more and more of the black population make the transition into the middle class. The new crop of managerial executives benefits from the experience of earlier pioneers going back a generation: Los Angeles’s Tom Bradley, Atlanta’s Andrew Young, and Baltimore’s Kurt Schmoke, among others, who tried with varying degrees of success to move beyond old-style racial leadership and govern more effectively for all constituents. Like them, the new guard generally steers clear of ideology. They avoid open repudiations of their predecessors, no matter how demagogic. They never explicitly abandon the civil rights tradition and rarely dismantle the racial remedies they inherit—including, in many cities, extensive municipal set-asides. They are not immune to racial pressures, as Anthony Williams proved disappointingly less than a month into his mayoralty, when he allowed public opinion to force out a key city official for no other reason than that he had used the word “niggardly” at a meeting. But even when they can’t rise above racial politics, what’s important about the new mayors is their focus on the bottom line: not, after all these years, the realization of a millennial civil rights vision but “merely” fiscal solvency and a city that works—for both blacks and whites.

But the truth is that, even more than the middle class, it is the black poor who need leaders with a more pragmatic, bottom-line approach. Whatever the appeal for poor people of an angry, outside protest leadership, they more than any are the ones who suffer when their politicians don’t deliver. The experience of the city of Detroit makes the case as vividly as any. “Mayor for Life” Coleman Young, who governed from 1973 to 1993, was an old-style leader in the classic mold. He came into office promising Black Power in one city, then made a career out of gratuitous race-baiting and thumbing his nose at the white suburbs. Detroit voters thrilled to his racial grandstanding and hardly seemed to notice as businesses fled and city services deteriorated—everything from schools to garbage pickup to, most disastrously, the police. By the early 1990s, the auto industry had all but abandoned Detroit for the suburbs. One in three residents lived below the poverty line, and, in some neighborhoods, more than half were unemployed. Two decades of ill-disguised contempt by the mayor had disastrously undermined the police force, allowing crack and the crime that came with it to devastate huge swatches of the city. Teenage pregnancy was more the norm than the exception, and by the time they got to high school, 70 percent of the city’s young men had already had some involvement with the criminal justice system, often for major offenses.16 Young’s successor, Dennis Archer, makes no appeals to solidarity, but he has devoted himself to restoring services, markedly improving the quality of life for both poor and more comfortable Detroiters.

Like all the “technocratic” black mayors, Archer has waged a multifront war. Like Cleveland’s Michael White and a number of the others, he has moved aggressively to reduce crime in the city by restoring confidence in the police department. Also like many of his fellow pragmatic urban executives, he has pushed to restore the city’s school system. (The mayors’ methods vary from city to city. In Cleveland, for example, White is moving toward a voucher system; in Detroit, with Michigan governor John Engler’s support, Archer has replaced the old elected school board with a more directly accountable “reform board” of his own choosing.) Like many of the other new mayors, Washington’s Anthony Williams included, Archer is nudging the city toward a more balanced budget. But perhaps most important, in Detroit, as in Cleveland and other places governed by the new breed, Archer has made it a top priority to bring business back into the center of town. Some of Detroit’s new enterprises are big, revenuegenerating behemoths: a $220 million casino, a new GM headquarters expected to employ hundreds of people. More significant in the long run, some are smaller, start-up companies that will restore jobs and create a business culture in poorer neighborhoods. (“The secret to revival,” one Detroit city planner said recently, explaining the mayor’s success, “is connecting the dots” of big, downtown commercial projects with an urban fabric of restaurants, shops, and other small enterprises.17) The one thing Archer does not particularly care about is whether the new business is white- or black-owned. This fiscally minded color blindness has infuriated many of the city’s middle-class black residents, who complain among themselves that the mayor isn’t “black enough.”18 But over time, it is hard to imagine that the all too tangible, day-to-day benefits of Archer’s approach— the lowered crime and better-paying jobs and new housing development— won’t eventually wean both the city’s poor and its better-off blacks from their yen for confrontational, outside leadership.

An old cliche´ left over from the heyday of the civil rights movement captures the uncertainty ahead in Detroit and other cities. “There is a little bit of Malcolm X,” the old phrase went, “and a little bit of Martin Luther King in every black man”—a little bit, that is, of angry, alienated outsider but also a measure of hope about eventually belonging and feeling at home in America. Just which of these two sides prevailed has depended over the years on several things, including which tendency the reigning black leadership encouraged and how open the system proved to black advancement.

Today, the hope is that the new-style leadership can make a difference, reinforcing and fortifying the side of people that wants to let go of the past and take advantage of new opportunities. The difficulty, as the experience of the managerial mayors shows, is that leaders can do only so much to change hearts and minds. At long last, a better leadership is emerging in black America. The question for the future is whether its followers are ready.

Notes

1. Figures are from David A. Bositis, the Joint Center for Political and Economic Studies.

2. USA Today, September 16, 1998.

3. Washington Post, September 17, 1998.

4. Washington Times, September 18, 1998.

5. Investor’s Business Daily, April 1, 1998; poll conducted in 1997 by theWashington-based Center for Education Reform.

6. Ethnic NewsWatch, January 4, 1997; poll conducted in 1996 by the Joint Center

for Political and Economic Studies.

7. Investor’s Business Daily, April 1, 1998; poll conducted in 1993 by Fabrizion,

McLaughlin & Associates.

8. David A. Bositis, “The Joint Center for Political and Economic Studies 1997

National Opinion Poll—Politics.”

9. Cited in Martin Kilson, “Problems in Black Politics,” Dissent, Fall 1989.

10. Ibid. The poll was conducted in 1986 by ABC News and the Washington Post.

11. See Kilson, “Problems in Black Politics”; Robert C. Smith,We Have No Leaders:

African Americans in the Post-Civil Rights Era (Albany: SUNY Press, 1996); Manning

Marable, Black Leadership (New York: Columbia University Press, 1998).

12. New York Times, November 6 and 8, 1998; Wall Street Journal, November 5, 1998.

13. Wall Street Journal, October 13, 1992.

14. New York Times, October 29, 1990.

15. Washington Times, September 18, 1998.

16. Tamar Jacoby, Someone Else’s House: America’s Unfinished Struggle for Integration

(New York: Free Press, 1998).

17. Wall Street Journal, September 13, 1999.

18. U.S. News and World Report, March 15, 1999.

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PART SEVEN — ONE NATION, INDIVISIBLE

The New Politics of Hispanic Assimilation

LINDA CHAVEZ

Hispanics have always been an afterthought in the American debate on race. At the beginning of the modern civil rights movement, Hispanics were too few in number, too disorganized, and too far removed from the locus of news stories about civil rights marches, church bombings, and bus boycotts to attract much attention or concern. Of the approximately 4 million Hispanics who lived in the United States in 1960, 85 percent were Mexican Americans who lived primarily in five southwestern states: California, Texas, New Mexico, Arizona, and Colorado.

Today, more than 30 million Hispanics live from California to New York, from Chicago to Atlanta, and they will soon become the largest minority group in the country, surpassing blacks within ten years. Still, Hispanics rarely generate the soul-searching anxiety routinely aroused whenever the subject of race comes up. In large measure, this indifference is testament to the tremendous social and economic progress Hispanics have made in the last forty years, but it may also reflect how unaware many Americans are that the paradigm of race and ethnicity has shifted dramatically in the last quarter century.

Hispanics do not constitute a single racial group. There are black Hispanics, like Chicago Cubs outfielder Sammy Sosa; white Hispanics, like pop singers Gloria Estefan and Ricky Martin; Indian or Mestizo Hispanics, like actor Edward James Olmos; even Asian Hispanics, like Peruvian President Alberto Fujimori. Hispanics hail from twenty-four Latin American countries, as well as the United States itself. Some can trace their lineage in the U.S. for generations, others are new immigrants. Indeed, about half of all adult Hispanics in the U.S. today are foreign born. It is this divide, whether we are talking about U.S.-born Hispanics or immigrant, that is the key to understanding what has happened to the Hispanic population in the U.S. over the last few decades and predicting whether Hispanics will remain a permanent minority or become just another of America’s many ethnic groups.

At the time of the civil rights movement of the 1950s and 1960s, most Mexican Americans faced obstacles similar to those of blacks living outside the Deep South. Although Mexican Americans did not have to contend with de jure segregation, prejudice and discrimination were nonetheless common, impeding Mexican Americans’ full integration into American society. Many Mexican Americans lived in appalling conditions, especially in south Texas and other border areas, residing in dilapidated shanties in towns with unpaved streets and poor or nonexistent sewage facilities. Mexican American children attended crowded, ill-equipped schools staffed by overworked, undercredentialed teachers. Most dropped out before they ever reached high school. Mexican American poverty was endemic in some regions, and the median income of Mexican Americans was 57 percent of non-Hispanic whites. In spite of their low socioeconomic status, Mexican Americans did participate in the political process, however. Mexican Americans served in Congress throughout the twentieth century, initially only from New Mexico, where until 1940 they constituted a majority of the population, and by the 1960s from Texas and California as well.

The advent of the civil rights laws, which outlawed discrimination on the basis of national origin and ethnicity as well as race and color, no doubt played a crucial role in the rapid upward mobility of Mexican Americans in the last several decades, but so did the general expansion of educational opportunity and the movement of the Mexican American population from small towns and rural areas to cities. But while Mexican Americans were quickly climbing the educational and economic ladder into the mainstream of American society, another important change was taking place within the Hispanic population. Mexican Americans, though still the dominant Hispanic group even today, were being joined every year by hundreds of thousands of new immigrants from Mexico, Guatemala, El Salvador, Nicaragua, and elsewhere in Latin America. Some 8 million Mexican and more than 4 million Central and South American immigrants make up the second largest group of Hispanics now living in the United States. Puerto Ricans, once the second largest group, number only about 3 million in the U.S., and Cuban refugees and their American-born children another 1.1 million.

Nevertheless, even with the tremendous demographic shift taking place within the Hispanic population, many observers failed to recognize that Hispanics could no longer be considered a single group, with a common history, experience, and interests. Many Hispanic leaders continued to make the case that Hispanics had been left behind in the quest for equal opportunity. At the very time that many Mexican Americans were closing the gap with their Anglo peers in terms of education and earnings, Representative Edward Roybal (D-California) bemoaned, “We are no better off today than in 1949.” His sentiments were echoed countless times. As the head of the National Council of La Raza, one of the oldest and most respected Hispanic advocacy groups, said in 1990: “Each decade offered us hope, but our hopes evaporated into smoke.We became the poorest of the poor, the most segregated minority in schools, the lowest paid group in America and the least educated group in this nation.” And to casual observers, these statements rang true, at least with respect to the aggregate achievement of all Hispanics living in the United States at the time.

What these commentators failed to note, however, was that the population they were describing no longer consisted largely of Mexican Americans who had lived in the United States for generations but instead included millions of recent immigrants, most of whom had resided here for less than a decade or two. What’s more, few of these immigrants spoke any English when they arrived, and they had had little formal schooling, so they could hardly be expected to earn wages equal to native-born Americans— Anglo or Hispanic—who had benefited from the tremendous opportunities that opened up in the wake of the civil rights movement. Thus, aggregate statistics that purported to represent the social and economic achievement of Hispanics concealed more than they revealed, minimizing the great progress made by native-born Hispanics in closing the gap with their fellow Americans while at the same time underestimating the great challenge posed by recent immigrants whose skills and education lagged far behind those of others in this society.

So how are the children and grandchildren of those civil rights–era Mexican Americans faring today? By and large, well. One of the best recent studies of Hispanic progress, an analysis of Hispanics living in five Southern California counties by Pepperdine University research fellow Gregory Rodriguez, shows that a majority of U.S.-born Hispanics are middle class, as defined by household earnings and home ownership. American-born Hispanics have not fully caught up with non-Hispanic whites—about 10 percent fewer Hispanics than whites had middle-class household incomes in 1990 or owned their own homes in the Rodriguez study—and U.S. Hispanics are far less likely to attend or complete college. Fewer than one in ten Hispanics holds a four-year college degree or higher, compared with more than one-quarter of non-Hispanic whites. Even among the youngest cohorts, only 11.5 percent of Hispanics have earned a bachelor’s or advanced degree, compared with nearly one-third of young non-Hispanic whites. These differences are not primarily the result of discrimination but are due to more subtle factors, including culture. In many respects, Hispanics in the U.S. have followed a pattern of social and economic progress not unlike that of certain previous ethnic groups, such as Italians and Poles, both of which took longer to catch up with other Americans in education, for example.

The real question today is whether this slow but steady movement of Hispanics up the economic ladder and into the social mainstream will continue in the face of unprecedented Latin immigration, which brings millions of poorly educated, non-English-speaking immigrants each decade. There are two problems that this phenomenon poses. First, the immigrants themselves differ in important respects from previous immigrants, even those who came in greater numbers (in relation to population) at the beginning of the century. Second, our expectations of what to demand from these immigrants have changed, as has our public policy for dealing with them.

Latin immigrants, unlike the waves who came from southern and eastern Europe from 1900 to 1924, speak a single language, and most come a relatively short distance, made shorter still by air travel, which allows them to return home frequently to renew their cultural ties to their homeland. More importantly, however, Americans no longer seem to expect newcomers to abandon their language and culture when they arrive—or so it appears, judging from the myriad of public policies in place to promote “multiculturalism” and separate ethnic identities. Where once immigrant children were expected to learn English immediately upon entering public schools and to adopt American civic values, cultural norms, even habits of dress, manners, and hygiene, today the public schools proclaim as their mission “diversity” in all its forms.

Bilingual education and multicultural curricula have worked to undermine commitment to a common civic identity that was once a mainstay of public education. Mexican children newly arrived in American public schools now frequently find themselves in classrooms where they are taught part of the day in Spanish, where they learn more about the achievements of Mayans and Aztecs than about the Puritans, where they are taught to revere Miguel Hidalgo and Emiliano Zapata on the same plane as George Washington or Thomas Jefferson, and to celebrate Cinco de Mayo with more fanfare than the Fourth of July. Although such efforts are aimed at boosting the self-esteem of children whose backgrounds were not white Anglo-Saxon Protestant, the clear consequence has been to promote a separate identity among some ethnic and racial groups. The goal is no longer assimilation. The intent of such policies is not to help the many become part of the one but to perpetuate separate racial and ethnic identities for generations to come. Nor do these multicultural policies affect only the schools. Whether in providing Spanish-language ballots, creating majority Hispanic voting districts, or giving preferences in jobs, government contracts, or admission to college on the basis of race and ethnicity, public policies that encourage groups to divide themselves by color or ancestry discourage them from forging a common, American identity.

Whether these policies will have a long-term effect on the assimilation of Hispanics and their full social and economic integration into the mainstream of American society remains to be seen. Evidence abounds on both sides of the debate. On the one hand, Hispanic immigrants seem somewhat slower to learn English or to become U.S. citizens than previous immigrants or even other contemporary immigrants from non-Latin countries. Threequarters of Mexican immigrants who arrived in the 1980s do not speak English well a decade or more later. Moreover, only about 15 percent of Latin immigrants now living in the U.S. have become citizens, a rate that reflects not only lower naturalization but also the higher proportion of Latinos who are very recent immigrants or are here illegally and therefore ineligible to become citizens.

On the other hand, some immigrant parents and other Hispanics are beginning to balk at programs like bilingual education. In California, some 40 percent of Hispanic voters joined the more than 60 percent of other Californians who voted to abolish bilingual education in a statewide referendum in 1998. Test scores from the first year under the new program suggest that the shift in state education policy, which now emphasizes special English immersion programs for non-English-speaking youngsters, has been a modest success, with double-digit gains by students in most districts that have adopted the new methods. Moreover, perhaps in the ultimate test of full assimilation, Hispanics are intermarrying at faster rates than many members of other immigrant ethnic groups traditionally have, with about one-third of third-generation Hispanic females now marrying non-Hispanic whites. Still, if our public policies continue to treat the offspring of such unions as somehow different from other Americans— and entitled to special benefits and consideration because of their ethnicity— we should not be surprised if Hispanics fail to follow in the footsteps of previous ethnics who have become virtually indistinguishable from the American mainstream. Unless we recommit ourselves as a nation to put aside race and ethnicity, to abandon all foreign allegiances, as our oath of citizenship still requires, America’s national motto—E pluribus unum, one out of many—will become mere hollow words in the twenty-first century.

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In Defense of Indian Rights

WILLIAM J. LAWRENCE

What should America’s policies toward American Indians be as we enter the new millennium? Should Indian tribes be viewed as “sovereign nations,” “domestic dependent nations,” wards of the federal government, or membership organizations similar to culturally based nonprofit corporations? Should Indians be viewed as full Americans with the same rights and responsibilities as every other American? Or should Indians and tribes attempt to maintain a “separate but equal” status in American life, and should a separate status continue indefinitely?

In fact, today, Indian people are citizens of the United States, citizens of the state in which they reside, and, in some cases, members of a tribe representing some aspect of their genealogical heritage. Tribal membership should not affect the citizenship rights of Indian people, but it often does. And the status of tribal governments, in some cases, even affects the citizenship rights of non-Indian citizens who come in contact with a tribal government.

As of the 1990 U.S. census, there were 1,959,234 people who identified themselves as Indian, 60 percent of whom are enrolled members of one of the 557 federally recognized tribes, bands, or communities.1 But many, if not most, people who identify themselves as “Indian” are actually only one-quarter or less Indian, with the balance of their family lineage being of some other racial combination. In fact, many people who consider themselves Indians are of a primarily non-Indian heritage and ethnicity. The percentage of Indian people living on reservations has been in continuous decline in recent decades. Currently, less than 20 percent (437,431) of the Indian population live on reservations. And 46 percent (370,738) of the total number of people living on reservations are non-Indians.2 On the nine most populous Indian reservations in the country other than the Navajo, less than 20 percent of the population is Indian. Most Indian reservations are populated primarily by non-Indian families, many of whom were invited to homestead on reservation land in the late 1800s during the “allotment era,” when the federal intent was to abolish the system of Indian reservations and merge Indian people and land into surrounding communities. And many reservation families include both Indian and non-Indian family members, resulting in children who have some Indian genealogy but may not have a blood-quantum high enough to qualify for tribal membership, generally considered to be one-quarter.

In light of these facts, what should current and future policies be regarding Indian people, tribes, and reservations? At some point, the federal government must reassess its policy of maintaining so-called “Indian reservations” and treating Americans who have an Indian heritage or identity as a separate class of citizens. Should that occurwhen Indians are 10 percent, 5 percent, or 2 percent of the reservation population? How long should the federal government maintain a Bureau of Indian Affairs (BIA), Indian Health Service, and other programs solely for citizens with some Indian genealogy? This nation is rapidly approaching a time when there will hardly be any Indians left on reservations, and those Indians who remain there will hardly be Indian.

History: Where We’ve Been

In the U.S. Constitution, no governmental powers are set aside for, granted to, or recognized as existing for Indian tribes. In fact, no plan was laid out in the Constitution for how to deal with Indian tribes at all, although the United States considered tribes to be under its dominion. Nowhere in the U.S. Constitution, or in any treaty or in any federal statute, are Indian tribes recognized as sovereign. The Supreme Court confirmed this in 1886 when it stated: “Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the Government of the United States or of the States of the Union. There exist within the broad domain of sovereignty but these two.”3

The first American treaty with Indians was signed in 1778 with the Delaware Indians. The last was signed with the Nez Perce in 1868. Over a span of approximately 100 years, nearly 400 treaties were negotiated between dozens of Indian tribes and the U.S. government, most during the westward expansion of the mid-1800s. Nearly a third were treaties of peace. The rest were treaties ceding Indian land to the U.S. government and establishing reservations.4 During this period, the United States paid more than $800 million for the lands it purchased from tribes.5

Treaties were not solemn promises to preserve in perpetuity historic tribal lifestyles, lands, or cultures, as is often claimed today. In fact, plans for assimilating Indian people into mainstream American life were spelled out in most treaties, often requiring that treaty payments be used for construction of schools, homes, programs to train Indian adults in agriculture, and promises to aid the transition from a subsistence lifestyle to active citizenship. Rather than being an indication that tribes were sovereign, many treaties specifically noted the lack of tribal sovereignty, and through treaties, many individual Indians and even entire tribes became U.S. citizens.6 In 1871, Congress ended all treaty making with tribes and stated that the federal government would instead govern Indians by federal policy, acts of Congress, and presidential orders.

Great Indian leaders in history, such as Chief Joseph of the Nez Perce, Sitting Bull and Crazy Horse of the Sioux, Geronimo of the Apache, and many others, are remembered for their steadfast resistance to being placed on Indian reservations and becoming wards of the federal government. Chief Joseph expressed a common view of his time when he said in 1879:

Treat all men alike. Give them all the same law. Give them all an even chance to live and grow. All men were made by the same Great Spirit Chief. They are all brothers. The mother Earth is the Mother of all people, and people should have equal rights upon it.We only ask an even chance to live as other men live.7

In 1887, the federal government too decided that attempting to keep Indian tribes separate from the rest of American civilization was not a good idea. The Board of Indian Commissioners wrote in its recommendations to Congress:

No good reason can be given for not placing . . . [Indians] under the same government as other people of the States . . . where they live. No distinction ought to be made between Indians and other races with respect to rights or duties. No peculiar and expensive machinery of justice is needed. The provisions of law in the several States . . . are ample both for civil and criminal procedure, and the places of punishment for offenses are as good for Indians as for white men.8

These words resonate even more today, 135 years after the Civil War resulted in the end of black slavery and 35 years after the civil rights movement ended a separate status for black Americans. Yet America still maintains race-based tribal courts, tribal laws, tribal sovereign immunity, and a policy of tribal “self-governance,” cutting off reservation Indians and non-Indians from equal justice under law.

In 1887, Congress passed the Dawes Act, also called the General Allotment Act, with the idea that Indians would fare better living as full citizens and individual members of society rather than as members of tribes. Under the Dawes Act, reservation lands held by the federal government were divided into parcels for individual Indian families after they were deemed “competent” to handle their own affairs. The stated intent was to merge Indians into American society and to give them the means, through land ownership, of being self-sufficient members of the larger community. When all reservation land had been allotted or sold, the plan was then to abolish the BIA and thus eliminate federal bureaucratic control over Indian life.9

The “allotment era” lasted approximately fifty years, during which time tribal land holdings fell from 138 million acres in 1887 to 48 million acres in 1934.10 Many Indians lost title to their property because their land was arid or untillable or because they were for other reasons unable to make a living for themselves or pay taxes. But allotment also allowed many individual Indians to own land, support themselves through farming, become U.S. citizens, and be active members of the larger community instead of relying on federal handouts for survival.

In 1924, the Indian Citizenship Act extended national and state citizenship to all Indians born within the territorial limits of the United States who were not already citizens and granted them the right to vote. This Act should have made Indians equal to all other citizens of the United States, with the same Constitutional protections, rights, and responsibilities. But the federal government has continued to treat Indians separately from other citizens, especially if they live on reservations.

In 1933, John Collier became commissioner of the BIA under President Franklin D. Roosevelt. Collier initiated a new federal Indian policy called the “Indian New Deal,” which became law as the 1934 Wheeler-Howard Act, also known as the Indian Reorganization Act. Collier admired Chinese communism, which he saw as a model for society.He wanted to implement these communist ideals on American Indian reservations, including communal ownership of property and central control of economic, political, and cultural activities.11 Many of these key aspects of the Indian Reorganization Act are still in effect on reservations today.

The Indian Reorganization Act moved away from assimilation, again made Indians wards of the federal government, and provided for placing previously allotted land back into federal trust, with the federal government, not Indian people, holding the title. The law also provided a means through which tribes that did not have a reservation could gain federal recognition and reestablish reservation lands. Under the Indian Reorganization Act, reservations expanded an estimated 7.6 million acres between 1933 and 1950,12 and BIA authority, programs, and staff were also expanded. Today, there are approximately 53 million acres of land in federal trust status for Indian tribes.13

After World War II, President Dwight D. Eisenhower established a “termination policy” in which the “trust responsibility” of the federal government to maintain Indian tribes would be terminated. The resolution that put this policy into effect stated: “It is the policy of Congress as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States.”14 Full integration was once again the stated federal policy toward Indians.

Under the termination policy, tribes could continue to exist as they chose, but federal supervision of Indian lands, resources, and tribal affairs would end, and the BIA and Indian reservations would eventually cease to exist.15 In 1953, there were 179 federally recognized tribes.16 By 1970, when the termination policy unofficially ended, almost 100 tribes, with an approximate total tribal membership of only 13,000 (less than 2 percent of the total Indian population), had their relationship to the federal government terminated.17 Few tribal members were actually affected by the termination policy, owing largely to resistance in Congress to implement it.

The federal Indian Claims Commission, which existed from 1946 to 1977, paid $880 million to a number of tribes as compensation for instances in which tribes had not received fair compensation for lands they sold to the United States in the nineteenth century. Tribes made over 500 claims before the Indian Claims Commission and won awards in 60 percent of them. Most were property rights claims.18

Modern Times: Lack of Accountability in Tribal Governments

The idea that Indian tribes should “govern themselves” as they wish has romantic appeal, but, in practice, tribal sovereignty and selfgovernance have created many problems.

“The accumulation of all powers—legislative, executive, and judiciary— in the same hands, may justly be pronounced the very definition of tyranny,” wrote James Madison, a founding father of the U.S. Constitution. 19 Today, the biggest exploiters and abusers of Indian people are tribal governments, in part because there is no guaranteed or enforceable separation of powers in tribal governments.Many of the largest and best-known American Indian tribes have rampant, continuous, and on-going problems with corruption, abuse, violence, or discord. There is a lack of oversight and controls in tribal governments. Most tribes do not give their members audited financial statements of tribal funds or casino funds, which on many reservations may represent tens or even hundreds of thousands of dollars per tribal member. It is literally impossible for tribal members to find out where all the money is going.

The underlying problem is that true democracy does not exist on Indian reservations. Tribal elections are often not free and fair elections, and typically they are not monitored by any third party. And true democracy includes more than just the presence of an election process. Democracy is also defined by limiting the power of the government by such things as the rule of law, separation of powers, checks on the power of each branch of government, equality under the law, impartial courts, due process, and protection of the basic liberties of speech, assembly, press, and property.20 None of these exist on most Indian reservations.

Tribal chief executives and tribal councils possess near-dictatorial control over tribal members. Not only do they control the tribal court, police, and flow of money, but they also control which tribal members get homes, jobs, and health care services, and under the Indian Child Welfare Act, they can claim more control over children who are enrolled members than the children’s own family, especially non-Indian family members. If they live on a reservation, Indian people who speak up run the risk of losing their homes, jobs, health care, and other services, making internal government reform even more difficult.

Some try to justify tribal government abuses and denial of civil rights by arguing that tribal members “consent” to being governed by the tribe and therefore willingly give up some of their inherent rights of citizenship. But if asked, the vast majority of tribal members never consented to any such thing.

Unfortunately, many Indian people who remain on the reservation either do not see themselves as having much choice, owing to personal addictions, depression, poverty, and despair, or because they are themselves benefiting from the unaccountable tribal system. Most of those who are in between these two extremes have left the reservation.

With many tribes claiming expanded jurisdiction and regulatory authority, including zoning, licensing, and taxing authority within long-extinguished former reservation boundaries, many non-Indians, too, are finding themselves subject to unaccountable tribal governments, without their consent and without a right to vote in tribal government elections. The issue of consent might be relevant if tribes were simply membership organizations like any other religious, cultural, or community group, in which it can be assumed that if you don’t want to be part of the group, you don’t join. But the federal policy of the past thirty years, as described by the American Indian Policy Review Commission, has been to expand tribes from being membership organizations to being literal governments sanctioned by the United States, with actual legal authority over people who may or may not have given their consent to being governed. This expanding authority of tribal governments is dangerous to the rights and freedoms of Indian people.

Congressman Lloyd Meeds (D-Washington), wrote in his dissent attached to the American Indian Policy Review Commission’s Final Report in 1977:

The blunt fact of the matter is that American Indian tribes are not a third set of governments in the American federal system. They are not sovereigns. . . . It is clear that nothing in the United States Constitution guarantees to Indian tribes sovereignty or prerogatives of any sort. . . . To the extent tribal Indians exercise powers of self-government in these United States, they do so because Congress permits it. . . . American Indian tribal governments have only those powers granted them by the Congress.21

In spite of the American Indian Policy Review Commission’s Final Report in 1977 laying out increased tribal “self-determination,” “sovereignty,” and “self-governance” as solutions to problems plaguing Indian reservations, in spite of the 1988 National Indian Gaming Regulatory Act, and in spite of the thirty-year push for increased tribal governmental power, the statistics show that life is getting worse for Indian people on reservations. Many news stories of late have documented shocking rates of murder, suicide, and violent assault, exceeding even that of the nation’s core cities.22 Claims of tribal sovereign immunity present additional problems. There are numerous cases of tribal casino patrons being injured or abused, businesses contracting with tribal casinos not getting paid for their services, and tribal casino workers being harassed and threatened, with no legal recourse. Any other business can be held accountable for such misdeeds in a state or federal court. But by claiming tribal sovereign immunity, tribal casinos have become the only businesses in the entire world that can totally avoid legal responsibility and liability within the United States.23

Many articles describe in detail the problems of trying to get anything resembling a fair hearing in tribal courts, which are not guaranteed to be separate from the tribal administration, where judges may not know anything about the law, where decisions are likely not documented, where due process is typically nonexistent, and where cases frequently don’t even get a hearing because of claims of tribal sovereign immunity.24 Yet many wellintentioned advocates for Indian causes mistakenly believe that increased tribal government rights is the same as protecting the rights of Indian people. Nothing could be further from the truth. Past civil rights movements provide lessons for the present. The late Hubert H. Humphrey, former U.S. senator, vice president, and presidential candidate, said in his famous civil rights speech fifty years ago at the 1948 Democratic National Convention: “There are those who say this issue of civil rights is an infringement on states rights. The time has arrived for the Democratic Party to get out of the shadow of state’s rights and walk forthrightly into the bright sunshine of human rights.”25 Replace the word state with the word tribe, and you get a statement many Indians and non-Indians wish they would hear from their leaders today: “There are those who say this issue of civil rights is an infringement of tribal rights. The time has arrived to get out of the shadow of tribal rights and walk forthrightly into the bright sunshine of human rights.”

The U.S. Supreme Court has in recent years expressed concern about the lack of controls on tribal sovereign immunity, including in May 1998 in its ruling in Kiowa Tribe of Oklahoma v. Manufacturing Technologies. Even as they upheld tribal sovereign immunity, the majority wrote:

Though the doctrine of tribal [sovereign] immunity is settled law and controls this case, we note that it developed almost by accident. . . . [The 1919 precedent-setting case of] Turner . . . is but a slender reed for supporting the principle of tribal sovereign immunity. . . . Later cases, albeit with little analysis, reiterated the doctrine. . . . There are reasons to doubt the wisdom of perpetuating the doctrine. [W]e defer to the role Congress may wish to exercise in this important judgment.26

In this 6-3 decision, the minority was adamant about the need for limiting tribal sovereign immunity:

Why should an Indian tribe enjoy broader immunity than the States, the Federal Government, and foreign nations? [The Court] . . . does not even arguably present a legitimate basis for concluding that the Indian tribes retained or, indeed, ever had any sovereign immunity for off-reservation commercial conduct. . . . [This] rule is unjust. . . . Governments, like individuals, should pay their debts and should be held accountable for their unlawful, injurious conduct.27

Through Kiowa, the U.S. Supreme Court has in effect sent an open letter to Congress asking them to correct the legal quagmire, confusion, and rank injustice of tribal sovereign immunity. Minnesota Appeals Court Judge R. A. ( Jim) Randall, in his eloquent and thoughtful dissent in Sylvia Cohen v. Little Six, Inc. (Mystic Lake Casino), outlined the way Indian people are being wronged by current federal Indian policies and Indian laws, which give power to tribal governments at the expense of Indian people:

Why here, are we tolerating segregating out the American Indians by race and allowing them to maintain a parallel court system and further, subjecting non-Indians to it? . . . The American Indian will never be fully integrated into this state, nor into this country, until we recognize this dual citizenship for what it really is, a pancake makeup coverup of Plessy which allowed separate but equal treatment. [Plessy, 163 U.S. at 551, 16 S. Ct at 1143 (holding that “equal but separate accommodations for the white and colored races” for railroad passengers was constitutional).] . . .

We should have learned by now that this duality in America is so intrinsically evil, so intrinsically wrong, so intrinsically doomed for failure, that we must grit our teeth and work through it. . . .

All bona fide residents of Minnesota, of all races and colors, enjoy identical opportunities for self-determination and self-governance. . . . Why is there this need to single out a class of people by race and give them a double dose of self-determination, and self-governance? . . . Are American Indians entitled to more self-determination than Minnesota gives to its other residents? . . . How can a state give more than it possesses? If this is deemed a federal issue, how does the federal government give more than it possesses? . . . Does that make Indians separate but equal? I suggest that Brown v. Board of Education will tell us this is a bad idea, a vicious and humiliating idea. Do we label Indians separate but more equal? . . . Do we label Indians separate but less equal? . . .

[T]his issue, is about the future of the United States, and the future of the American Indian. This case is about whether we accept the American Indian as a full U.S. citizen, as a real American, or whether we will continue to sanctify tiny enclaves within a state and tell the individual Indian that if he or she stays there and does not come out and live with the rest of us, we will bless them with the gift of “sovereignty.” . . .

For some reason, we continue to insist that American Indians can be the last holdout, a race that is not entitled to be brought into the fold, can be left to shift for themselves as long as, from time to time, we pat them on the head like little children and call them sovereign. Sovereignty is just one more indignity, one more outright lie, that we continue to foist on American citizens, the American Indian.28

Conclusion: Preserving Our Cultural Past and Future

The nineteenth century view of “assimilation” envisioned that people would be accepted into mainstream American life only if they looked and acted like white Christians. That is quite different from the modern view of “integration,” in which people are allowed into mainstream culture even as they maintain their own cultural traditions and identity within racial, ethnic, or religious groups.

The U.S. Constitution provides the greatest opportunity in the world for groups of people to preserve their cultures, religions, and identities, through its protections of speech, assembly, press, and religion. Ironically, the only place Indian people are not guaranteed these rights is on an Indian reservation. By denying Indian citizens basic civil rights, tribal governments’ claims to sovereign immunity have done more to destroy tribal culture than to preserve it.

Preserving and living one’s culture is one’s own business. There are many unique groups within the United States, all preserving their own beliefs and cultures as they wish, and our government bends over backwards to protect their right to be different, whether it’s the Amish, Mormons, Italians, Moonies, Pagans, Irish, Baptists, Roman Catholics, Greeks, Hassidic Jews, Nation of Islam, Swedes, or any manner of extremist, fundamentalist, traditionalist, or nonconformist. As Americans, we have the right to identify with a group and maintain a unique culture, to greater or lesser degrees, as we wish. Why would Indians and tribes be entitled to anything different?

As Judge Randall wrote in his dissent in Cohen:

There is nothing that Indian people are entitled to as human beings that cannot be afforded them through the normal process of accepting them as brother and sister citizens. . . .

The truly important goals of protecting Indian culture, Indian spirituality, self-determination, their freedom, and their way of life can be done within the same framework and the same system, by which we treat all other Minnesotans of all colors. The real issue is, do we have the will?”29

It is time to end the Noble Savage Mentality that keeps tribes in the ambiguous, inconsistent, and untenable position of being simultaneously wards of the federal government, domestic dependent nations, and supposedly sovereign nations. Indian people, whether tribal members or not, should be recognized as full U.S. citizens with all the rights, responsibilities, and protections thereof, nothing more and nothing less.

Notes

Julie Shortridge, managing editor of the Native American Press/Ojibwe News, contributed

to this essay.

1. Bureau of the Census, U.S. Dept. of Commerce, American Indian and Alaska

Native Areas: 1990 (1991).

2. Ibid.

3. U.S. Supreme Court, U.S. v. Kagama, 118 U.S., at 375 (1886).

4. Vine Deloria Jr., Custer Died for Your Sins (New York: Macmillan, 1969), p. 32.

5. Francis P. Prucha, American Indian Treaties: A History of a Political Anomaly

(Los Angeles: University of California Press, 1994), p. 153.

6. Charles Kappler, ed., Indian Treaties 1778–1883 (New York: Interland Publishing,

1972), Wyandot Treaty of 1855, art. 1, p. 677.

7. Helen Addison Howard and Dan L. McGrath, War Chief Joseph (Lincoln:

University of Nebraska Press, 1941), pp. 298–99.

8. Board of Indian Commissioners: Annual Report, 1887.

9. Commission of Indian Affairs: Annual Report, 1890.

10. Editorial Research Reports, April 15, 1977.

11. John Collier, From Every Zenith (Denver: Sage Books, 1963).

12. J. P. Kinney, A Continent Lost—A Civilization Won: Indian Land Tenure in

America (Baltimore: Johns Hopkins Press, 1937), p. 351.

13. “Federal Lands: Information on the Acreage, Management, and Use of Federal

and Other Lands,” Letter Report (GAO-RCED-96-104, 1996).

14. Ruth Packwood Scofield, Americans Behind the Buckskin Curtain (New York:

Carlton Press, 1992), House Concurrent Resolution 108, p. 93.

15. Theodore W. Taylor, American Indian Policy (Mt. Airy, Md.: Lomond

Publications, 1983), p.106.

16. John R. Wunder, Retained by the People: A History of American Indians and the

Bill of Rights (New York: Oxford University Press, 1994), p. 100.

17. Congress of the United States, American Indian Policy ReviewCommission: Final

Report (Washington, D.C.: U.S. Government Printing Office, 1977), p. 451.

18. Congress of the United States, Indian Claims Commission: Final Report (Washington,

D.C.: U.S. Government Printing Office, 1977), p. 21.

19. Michael Loyd Chadwick, ed., The Federalist (Washington, D.C.: Global Affairs,

1987), p. 260; James Madison, paper no. 47, “Separation of Power Essential for the

Preservation of Liberty.”

20. Fareed Zakaria, “The Rise of Illiberal Democracy,” Foreign Affairs, November–

December, 1997.

21. Lloyd Meeds, dissent, Congress of the United States, American Indian Policy

Review Commission: Final Report. Meeds was vice chairman of the commission.

22. DebraWeyermann, “And Then ThereWere None,” Harper’s, April 1998.

23. Craig Greenberg, oral testimony, U.S. Senate, Indian Affairs Committee, April

7, 1998.

24. See, e.g., Pat Doyle, “Sovereign and Immune, Tribes Often Can’t be Touched

in Court,” Minneapolis Star Tribune, July 24, 1995; Alice Sherren Brommer, “Should

You Become Tribally Licensed?” Minnesota Lawyer, November 1, 1999; Bill Lawrence,

“Tribal Injustice: The Red Lake Court of Indian Offenses,” North Dakota Law Review

48, no. 4 (summer 1972): 639–59.

25. Hubert H. Humphrey, speech on civil rights at the 1948 Democratic Convention,

as reprinted in the St. Paul Pioneer Press, June 14, 1998.

26. U.S. Supreme Court, Kiowa Tribe of Oklahoma v. Manufacturing Technologies,

Inc., majority opinion, May 26, 1998.

27. Ibid., minority opinion, May 26, 1998.

28. Minnesota Court of Appeals, Sylvia Cohen v. Little Six, Inc., d/b/a/ Mystic Lake

Casino, file no. C9501701, February 13, 1995, pp. D47–D62.

29. Ibid., pp. D42–D62.

==============================

The Battle for Color-Blind Public Policy

C. ROBERT ZELNICK

In no state was the liberal Democratic tide more evident on November 2, 1998, than in Washington. There, Senator Patty Murray, widely believed to be in jeopardy in her race against Representative Linda Smith, a conservative Republican, sailed to reelection with 58 percent of the vote. Democrats unseated Republicans in two of the state’s congressional districts, bringing their total to six of Washington’s nine House seats. A bid by “Right to Life” advocates to ban so-called “partial-birth” abortions was voted down handily.

That makes all the more remarkable the victory of Initiative 200, the move to end race preferences in public education, employment, and contracting. The measure, patterned after California’s Proposition 209— adopted by that state’s voters in 1996—captured 59 percent of the vote. Only in Houston’s 1997 referendum did voters reject a ban on race preferences, and here opponents of the measure, led by Mayor Bob Lanier, so distorted the language on the ballot that the result was thrown out in court and a new vote ordered. The result inWashington is thus further evidence that when voters are presented with a clearly defined, up or down decision on race preferences, they will vote “no.”

Further, the effort in Washington faced obstacles far more formidable than those that confronted backers of the California proposition. For one thing, in California the political and economic resources of the two sides were relatively equal. Governor Pete Wilson supported the measure and was able to pressure many big corporate opponents to keep their mouths and their wallets out of the fight. And though opposition groups still mounted an impressive campaign, the state Republican establishment, looking for some activity more rewarding than attempting to elect Bob Dole, campaigned actively for passage of the proposition.

In Washington, Democratic Governor Gary Locke was a fervent opponent of the antipreference measure and, as the Seattle Times reported, “implored corporate leaders to fight I-200 with their clout and the checkbooks.” Among those making major contributions to the anti-I-200 campaign were Boeing, Microsoft, Hewlett-Packard, Costico, and Starbucks. According to the Seattle Times, in late July, “Eddie Bauer President and CEO Rick Fersch invited dozens of executives from the technology, communications, manufacturing and retail fields to his Redmond headquarters to discuss ways to defeat I-200.” The group was treated to a guest lecture by Andrew Young, Jimmy Carter’s U.N. ambassador and a long-time player in Georgia politics. In the end, opponents of I-200 outspent supporters by roughly four to one.

Yet opponents of race preferences can take only limited solace from the Washington vote. The very fact that Initiative 200 was able to prevail in spite of strong political currents moving from right to left makes it clear that many who supported it aligned themselves with liberal Democrats in other contests. This would suggest a lack of intensity to the opposition to preferences, an unwillingness on the part of many voters to withhold support from candidates simply because they disagree with them on the preference question. A similar assessment flows from the California vote, where the same electorate that adopted Proposition 209 overwhelmingly supported Bill Clinton and Al Gore Jr. over Bob Dole and Jack Kemp. Two years later California Democrats recaptured control of the governor’s mansion and both houses of the legislature.

To this extent, opposition to race preferences is atypical. Social issues are often the defining issues of political campaigns, often disrupting traditional patterns of party allegiance. The same voter who will cast one vote against race preferences and another for a candidate endorsing them probably would have been far less likely during the 1970s or 1980s to engage in similar “ticket splitting” with respect to such issues as abortion, crime control, school busing, and welfare reform. These issues created millions of “Reagan Democrats” two decades ago. Race preferences are doing nothing remotely similar today.

Indeed, further analysis of the two votes might well suggest that the presence of antipreference initiatives on the ballots brings large numbers of voters to the polls who not only support preferences but also regard the issue as a litmus test for other candidates on the ballot. If so, this would call into question the efficacy of “Prop 209” type initiatives as a political strategy. To win on the referendum but lose valuable executive or legislative offices would be a trade-off even many opponents of race preferences might be unwilling to make. The frosty reception accorded advocates of a new antipreference initiative by Republican Governor Jeb Bush of Florida underscores this sentiment.

Another sign that elected officials in much of the country feel that defying majority sentiment on race preferences carries no political price came earlier in 1998. In March, the U.S. Senate approved a 10 percent minority set-aside in federal contracts under the Interstate Transportation Emergency Act (ISTEA), in spite of a growing body of judicial precedent holding such targets unconstitutional. The Departments of Justice and Transportation blandly assured the Congress that new regulations implementing the set-asides were designed to comply with the judicial concerns expressed in earlier cases.

In May, the House weighed in, rejecting by a hefty 249–171 vote the “Riggs Amendment,” which would have effectively banned race preferences in admissions to state universities. The two votes were instructive. Not only will Congress refuse to undo racial preference programs already on the books, but it will also endorse efforts to reshape programs to skirt judicial holdings of unconstitutionality—all this in the face of polling data that show opposition to such preferences by a clear majority. To repeat: senators and representatives plainly have concluded that they can defy majority public sentiment on this issue and still keep their seats.

Consider, too, the position on the issue of Vice President Al Gore. Gore is far less circumspect in his support for race preferences than President Clinton, and far less reticent about seeking to demonize those who disagree with him. Clinton has long voiced caution about the wisdom and effects of preferences, saying early in his presidency that they produced few results and were difficult to justify. When he finally embraced the “mend it, don’t end it” approach to affirmative action in 1995, preempting a primary challenge by Jesse Jackson appears to have been his chief aim. Former Clinton strategist George Stephanopoulos explained at Harvard during the Kennedy School’s postmortem on the 1996 campaign that the administration felt Jackson would have entered the race had Clinton not moved on the issue as he did.

Clinton has been unerringly civil in discussing his support for affirmative action and most tolerant of those who have reached contrary positions. Gore has been substantially less so. Nowhere was the contrast between the two more evident than at a December 1997 White House meeting with a distinguished group of opponents of race preferences, includingWard Connerly, Abigail and Stephan Thernstrom, Linda Chavez, and Representative Charles Canady. Clinton again stated his philosophical difficulties with the race preferences and noted that they tend to benefit those “who are at least in a position for it to work.” Moments later, he added, “A lot of the people that I care most about are totally unaffected by it one way or another.”

Gore first chose to lecture the group on how inherent group antagonisms that are evident around the world justify protecting African Americans in the United States. He cited the ethnic hatred in Bosnia (where both sides are white), the “rape ofNanking” fifty years ago (committed by Asians against Asians), and the near-genocide in Rwanda of the Tutsis by the Hutus (where blacks slaughtered blacks). “I think that people are prone to be with people like themselves, to hire people who look like themselves, to live near people who look like themselves,” he said. “And yet in our society we have this increasing diversity, we have community value, a national interest in helping to overcome this inherent vulnerability to prejudice.” That formulation runs counter to repeated Supreme Court pronouncements that quotas and other preferences cannot be invoked as a remedy for general societal discrimination. It also invites the task of allocating benefits among dozens of potential ethnic and racial claimants, a task government is ill equipped to perform. Are the Hispanics who come to this country, legally and illegally, in search of economic opportunity entitled to their cut of the quota pie upon arrival? What about the children of Vietnamese boat people? Or descendants of Japanese interned during WorldWar II? Or Chinese, treated as railroad-building coolies and denied the legitimacy of citizenship?

One month after that White House session, Gore spoke at a ceremony commemorating the birth of Martin Luther King Jr. at the Ebinezer Baptist Church in Atlanta where King once preached. No longer were opponents of racial preferences well-intentioned people with whom there was a difference of opinion. Now they were evildoers trying to deceive the nation. In the words of Mr. Gore:

Yet now we hear voices in America arguing that Dr. King’s struggle is over— that we’ve reached the Promised Land. . . . They use their color blind the way duck hunters use their duck blind. They hide behind the phrase and hope that we, like the ducks, won’t be able to see through it. They’re in favor of affirmative action if you can dunk a basketball or sink a three-point shot. But they’re not in favor of it if you merely have the potential to be a leader of your community and bring people together, to teach people who are hungry for knowledge, to heal families who need medical care. So I say: we see through your color blind.

Amazing Grace, also save me;
Was color blind but now I see.

For the record, of course, no one associated with the battle against race preferences has, to the author’s knowledge, ever disputed the wisdom of taking community leadership or service potential into consideration in the college admissions process. Nor do opponents of race preferences urge a sterile exclusive reliance on such static indicators of student success as SAT scores and high school grade point averages, although the combination of these two factors is a valid and unbiased predictor of college success. They do, however, urge that whatever the admissions standards, they be applied in a nondiscriminatory manner so far as race and ethnicity are concerned. Race is not a proxy for community leadership. Nor is race a proxy for the willingness “to teach people who are hungry for knowledge” or “to heal families who need medical care.” On the contrary, the overwhelming evidence is that the best teaching and healing are done by those whose tests indicate a mastery of their subjects.

Other factors contributed to the resistance by legislators to tamper with race preferences. In California, implementation of Proposition 209 resulted in a sharp drop in the number of blacks and Hispanics at the state’s elite public universities (and a corresponding increase at several less selective schools). An even more dramatic decline of blacks and Hispanics occurred at the University of Texas law and medical schools following federal court decisions outlawing the consideration of race or ethnicity in public university admissions.

In a painful reconsideration of positions long advocated,Nathan Glazer called for special treatment of black applicants to the nation’s elite universities, suggesting that such access is the most certain path toward economic and social progress. His plea received curious support from the book The Shape of the River by educators William G. Bowen and Derek Bok—”curious” because the statistics assembled by Bowen and Bok can be read as lending support to the nub of the case against race preferences in admissions. Reviewing the experience at twenty-eight select colleges and universities, the book shows that both high school grade point average and SAT scores account for statistically significant differences in college performance through all four years and that black students at selective universities, most of whom were admitted with the help of race preferences, maintain a GPA in the 23rd percentile of their schools, a full 30 percentile places lower than whites. Moreover, they achieve significantly lower graduation rates, 75 percent versus 86 percent, again emphasizing the point that their initial admissions were based upon race rather than relative academic potential.

True, a high percentage attend graduate schools, which themselves maintain race preferences in admissions, but the Bowen-Bok study fails to show any point at which minorities admitted with inferior academic credentials manage to close the performance gap vis-a’-vis whites or Asians. If anything, the study documents the supreme injustice practiced against those students among the unfavored races or ethnic groups who are denied admission to make room for the preferred categories.

It is difficult to determine the legal theory under which Mr. Glazer or the authors of The Shape of the River would effectuate the preferences they endorse. In the 1978 Bakke opinion written by Justice Lewis F. Powell, the “swing” vote in the case, state universities were forbidden to establish racial quotas but could—under their historic First Amendment right to determine the composition of their student bodies—make race a “plus” factor or “tie breaker.” Thus the “diversity” rationale. But the vast spread embraced by many of the most selective universities for purposes of admitting the desired number of blacks and Hispanics mocks the very notion of a “plus factor” or “tie breaker.” For example, theWall Street Journal reported that at the Berkeley campus of the University of California in one recent pre-209 academic year, the math SAT scores were 750 for Asians, 690 for whites, 560 for Hispanics, and 510 for blacks. At that school race was not a plus factor in the admission of many blacks, it was the factor.

Of course, neither Glazer nor Bowen and Bok offer any realistic guidance for limiting the application of such preferences once they are in place. Optimistically, Glazer would extend preferences only to blacks and only at undergraduate institutions. But group entitlements quickly become a way of life. Already they extend to ethnic groups lacking even the historic claims of blacks, and to law, medical, and other graduate schools, to employment, and to local, state, and federal contracts. Even law reviews at many of the most prestigious universities now accept black editorial board members whose competitive credentials in terms of grades and legal research ability fall short of whites turned down for the same honor. Medical schools routinely admit blacks and Hispanics whose academic credentials are significantly lower than those of whites and Asians denied admission to the same institutions. In the spring of 1998, the NAACP held a demonstration involving civil disobedience outside the Supreme Court itself because it claimed that the Justices were hiring too few black law clerks. Because these cherished positions unfailingly go on the basis of merit to the outstanding young scholars in the legal community, the NAACP move in effect demanded that the Court employ standards for its own positions that have been held unconstitutional—yet are widely practiced—elsewhere.

Perhaps the most revealing defense of race preferences was offered by Nicholas deB. Katzenbach and Burke Marshall, two Justice Department giants during the Kennedy-Johnson civil rights era. Throughout much of their article, which appeared in the February 22, 1998, New York Times Magazine, Katzenbach and Marshall recite pretty much the standard litany: race preferences in employment are really an effort to counter attitudinal or even subconscious discrimination; similar preferences in university admissions are grounded in the belief that “a diverse student body contributes to educational excellence and to the preparation of students to live in an integrated society.” But in the end, the authors have too much intellectual integrity to maintain that an Equal Protection Clause of the Fourteenth Amendment applicable to whites could countenance the kind of race preferences they endorse. The Supreme Court has repeatedly held that under the Fourteenth Amendment racial classifications are subject to strict scrutiny. To pass muster, they must serve a compelling state interest—usually the need to remedy past discrimination against the covered individuals. And they must be narrowly tailored in terms of scope and duration to serve the compelling interest involved.

It has been by applying these standards toward the protection of whites as well as blacks that the Court in recent years has declared unconstitutional state and federal set-asides for minority government contractors and the racial gerrymandering of congressional districts to make the election of minority candidates all but certain.

Here, in the view of Katzenbach and Marshall, is where the Supreme Court has gone wrong. Whites, they maintain, are not entitled to equal protection under the Fourteenth Amendment because the historic purpose of the Amendment and its implementing legislation was to forbid “abuse of white political superiority that prejudiced other races or ethnic minorities.” They write:

Reading the Equal Protection Clause to protect whites as well as blacks from racial classification is to focus upon a situation that does not and never has existed in our society. Unfortunately, it casts doubt upon all forms of racial classification, however benign and however focused upon promoting integration. If such a reading is finally adopted by a majority of the Court, it would put a constitutional pall over all governmental affirmative action programs and even put similar private programs in danger of being labeled “discriminatory” against whites and therefore in violation of existing civil rights legislation—perhaps the ultimate stupidity.

Thus, the ultimate political question and the ultimate legal question are one. Simply stated but not oversimplified, it is whether whites and Asians in this democracy have the same constitutional rights as blacks, Hispanics, and other favored groups. That is the core issue in arguments over whether the Equal Protection Clause of the Fourteenth Amendment forbids federal, state, or local government from preferring one group or another on the basis of race or ethnicity. And it is what is meant by the argument over whether our government and our Constitution should be “color blind.” A color-blind legal order is not one that naı¨vely denies the existence of different races with vastly different histories any more than the pronouncement in the Declaration of Independence that “all men are created equal” suggests that we are all born with similar physical strength, mental aptitude, and family wealth. Rather, a color-blind legal order is one in which the government allocates neither rights nor burdens on the basis of race or ethnicity save as a remedy for proven specific acts of official discrimination.

Nicholas deB. Katzenbach and Burke Marshall reject the notion of a color-blind society because they do not believe that the Equal Protection Clause of the Fourteenth Amendment can apply to white people or Asian Americans and still achieve the goal of uplifting blacks. Apparently,Al Gore adheres to a similar view. In his words, “I was color blind but now I see.” Here, then, is an issue worthy of national debate as well as articulation by the courts. The legislative route to erase racial preferences has, for the time being, failed. The referendum approach has produced some stunning victories, but it has not convinced voters to underline their convictions by electing representatives who share them. But the stated attempt to write whites out of the Fourteenth Amendment could concentrate the national political mind and, appropriately framed in the right case, engage the attention of the Supreme Court.

==============================

One Nation, Indivisible

WARD CONNERLY

On july 20, 1995, the Regents of the University of California (UC) eliminated the consideration of race, gender, color, ethnicity, and national origin in the admissions, contracting, and employment activities of the University. Thus, UC became the first public institution in America to confront its system of preferential policies. With that action, the Regents began a new era of civil rights reform, a new way of looking at race in America, and, yet, a return to a well-established American ideal. Coming on the heels of the UC Regents’ action was the overwhelming (54 percent to 46 percent) passage of the California Civil Rights Initiative (Proposition 209) by the voters of California. Proposition 209, approved on November 5, 1996, provided that “the state shall not discriminate against, or grant preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity or national origin, in the operation of public employment, public education or public contracting.”

On November 3, 1998, the electorate of the state ofWashington, in an election that can only be described as remarkable, approved Initiative 200 (I-200), a clone of California s Proposition 209. I-200 was approved by a margin of 58 percent to 42 percent. What made the victory remarkable and, indeed, revealing about the matter of race in America was the number of obstacles that had to be overcome to achieve the result.

I-200 was opposed by the popular Democratic governor of Washington, theWashington Democratic Party, the largest employers in Washington— Boeing, Microsoft, U.S. Bank, Weyerhauser, Eddie Bauer Company— and those who lay claim to being civil rights champions, the Urban League, the NAACP, Jesse Jackson, MaxineWaters, and others. The initiative was also opposed by virtually every newspaper in Washington, particularly the Seattle Times, whose publisher donated full-page ads worth over $200,000 to defeat the measure. Vice President Al Gore made four trips to Washington to raise funds and speak out against I-200.

At this election, the voters reelected freshman Democrat Patty Murray to the U.S. Senate, ousted two-term Republican congressman Rick White, stripped control of both houses of the Washington state legislature from Republicans, defeated a measure that would have banned partial-birth abortions, and approved a measure dramatically increasing the minimum wage.

In the face of these events, I-200 received the nod from 80 percent of Republicans, 62 percent of independents, 41 percent of Democrats, 54 percent of labor, and the majority of women, in spite of a campaign barrage aimed at convincing women that the initiative would adversely affect their best interests.

The exit polls tell the story: the people ofWashington had decided that the time had come to end race-based preferences. Less than 15 percent of the electorate believed that it was still appropriate to compensate black people for past wrongs. The overwhelming majority of the electorate concluded that all residents of the state should be treated equally: no discrimination and no preferences.

Why did the voters of Washington ignore the advice of politically correct big corporations, politicians, the media, and race advocates, who hid behind the moral fig leaf of “diversity” and “inclusion,” and end the system of preferences and de facto quotas that have come to define affirmative action? The answer is simple. There is a deeply rooted culture of equality in America that transcends political correctness, partisanship, and ideology.We can trace this culture back to the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal.” This culture of equality was underscored by Abraham Lincoln: “Four score and seven years ago, our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal.” When Martin Luther King Jr. led the nation through the tumultuous civil rights era, beginning with the public bus boycott in Montgomery in 1955, he invoked that culture of equality in calling on America to “live out the true meaning of your creed.”

The principle of equality has been embraced by liberal Democrats and conservative Republicans alike. President Lyndon Johnson said:

Rarely are we met with a challenge, not to our growth or abundance, or our welfare or security, but rather to the values and the purpose and the meaning of our beloved nation. The issue of equal rights . . . is such an issue. And should we defeat every enemy, and should we double our wealth, and conquer the stars, and still be unequal to this issue, then we will have failed as a people and as a nation.”1

And Ronald Reagan, in one of his last addresses to the American people, said: “We are all equal in the eyes of God. But, in America, that is not enough, we have to be equal in the eyes of each other.”2

The debate about affirmative action preferences is fundamentally about the rights and responsibilities of American citizenship. It is about whether we will have a system of government and a social system in which we see each other as equals. Although often lost in the rhetorical clamor about its benefits, race-based affirmative action as a concept is, at its core, a challenge to the relationship between individuals and their government. It is a direct threat to the culture of equality that defines the character of the nation. Those who support affirmative action programs contend that such programs are necessary to provide equal opportunity for women and minorities. The argument is routinely advanced that without affirmative action women and minorities will be subject to the vagaries of the “good old boys network” and will be denied the opportunity of full participation in American life. But when you strip away all the rhetoric about “leveling the playing field” and “building diversity,” preferential policies reduce themselves to two essential questions.

First, are white males entitled to the same assertion of civil rights and equal treatment under the law as women and minorities? Second, how much longer is the nation going to maintain policies that presume that American-born black people are mentally inferior and incapable of competing head-to-head with other people, except in athletics and entertainment? We cannot resolve the issue of race in America without coming to terms with these two questions. And we certainly cannot reconcile the conflicts about affirmative action preferences without answering these questions. More than anything else, however, the debate about race-based preferences has focused the nation’s attention on the politics of race. The affirmative action debates in California and Washington should convince us that we cannot settle the matter of race in America without settling the issue of affirmative action. But when we resolve the issue of affirmative action, we will be laying the foundation for the kind of race relations that the nation needs in order to live out the true meaning of its creed: one nation, indivisible.

American society was conceived and has been nurtured through the years as a society of individuals. At the center of our society is the concept that we are all a minority of one. Obviously, policies that herd the American people into groups, or political enclaves, are in direct conflict with the spirit of individualism that characterizes the nation. The phrase “people of color” has come to describe the way in which race and ethnicity are being politicized in America. Implicit in this phrase is the coalescing of minorities into a coalition or political caucus, which, together with white women, constitutes a power base of sufficient magnitude to preserve race- and genderbased preferences and to achieve other political benefits for the coalition.

Every day, in every region and hamlet of America, we are witnessing the deterioration of American individualism and the ascension of political group thinking, of which preferential policies are the most visible manifestation. How does this form of identity politics play out in the broader societal context? We don’t have to look far to find evidence of how individuals identify with their group as opposed to reacting to issues as individuals. The O. J. Simpson verdict illustrated the profound difference between black and white groups in their perception of the American criminal justice system.Welfare reform was another example of differences between black and white. According to some polls, over 70 percent of black people initially opposed welfare reform, while a similar percentage of white people favored reform.

The issue of the impeachment of President Clinton is yet another example of group thinking, and a vivid illustration of the difference between the perspectives of blacks and whites. For example, a January 22, 1999, Zogby poll found that nearly 67 percent of blacks thought the President’s impeachment and trial should just end. Only 22 percent of whites thought this way. Nearly 30 percent of whites felt the President should be removed from office, and a mere 1 percent of blacks felt the same way. Finally, black people support affirmative action preferences by about the same percentage as white people oppose them (over 65 percent in most public opinion polls).

The result of the 1960s civil rights movement should have been the promise of equal treatment under the law for all Americans. Instead, the result has been a presumption that the very term “civil rights” is synonymous with the rights of black people. In America, we are engaged in an exciting adventure, an adventure that is unrivaled elsewhere in the world. Can we take people from around the globe, who come from different cultures, who have different religious beliefs, who embrace different political ideologies, and who are all colors of the rainbow, and assimilate their differences into a common culture and national identity?

When Thomas Jefferson and the other founders laid out this adventure, they gave their new nation a moral blueprint to make the adventure a success. The centerpiece of that blueprint is our system of moral principles. Moral principles do not change with the seasons. That is precisely why the founders proclaimed that certain truths are “self-evident” and “endowed by our Creator.” They are not meant to change or to be bargained away. Our inalienable rights are the centerpiece of that moral system, and the principle of equality is central to our system of rights.

But what can the average citizen expect from such a morality-based society? The citizens of America present and future had (and have) a right to know what benefits would obtain from an adherence to fundamental moral principles. The founders did not disappoint. They envisioned a more perfect union with freedom, liberty, justice, and equality for all Americans. So equality is directly linked to our freedoms and to our system of liberty and justice for all. Giving someone a preference, lower academic requirements, contract set-asides, or employment quotas betrays that system. Preferences based on race and ethnicity diminish the value of the individual in ways too numerous to mention and have consequences far beyond their effects on the nation’s character and the harm that they do to those who are not the beneficiaries of such policies. Preferences unwittingly damage the perceived beneficiaries more than one can ever imagine, in spite of the denials of preference advocates. This occurs in two principal ways.

First, preferential policies, by their nature, require a paradigm of victims and oppressors. In a highly competitive society such as America, there is nothing more debilitating to an individual than to crush the competitive instinct. It is like taking a baby animal from its mother, domesticating it, and then turning it loose in the wilderness. The probability is high that the animal, its natural instincts to survive dulled by the process of domestication, will have a difficult time surviving in the wild. So it is with people, especially black people. Though their ancestors successfully struggled to overcome tremendous obstacles, many young blacks seem to be lacking in the area that matters most in a modern, global economy: a competitive desire and self-confidence in one’s ability to compete in academic pursuits. Too many young, bright black men and women have no confidence in themselves and in the American system when the subject is education. A similar phenomenon is now occurring among Latinos. Telling them that they need affirmative action becomes a self-fulfilling prophecy.

Following a lecture at Florida State University where I had vigorously opposed preferences based on race and ethnicity, a black woman grabbed my hand and led me to a corner of the room. “I am listening to what you are saying,” she said, “and you are making sense. But I have four boys, and I want to do what is best for them. What advice do I give them about race?” I said, “Tell them that they may encounter an element of racism and discrimination along life’s journey, but for every act of racism, they will probably experience five acts of fairness and opportunity.”

“Tell them to study, study, study to prepare themselves for the opportunities that will present themselves and build their careers around the good things that will happen. If racial obstacles confront them, go under, around, over, or blast through those obstacles. But don’t let them believe that their futures are contingent upon anyone else’s generosity. Make them believe in themselves and trust our system. The concept of self-reliance is the best and most enduring gift you can give them.” She smiled broadly and said, “Thank you.”

The major obstacle facing the average black person in America is not race; it is the attitude and approach of black people toward their role in American society. If we have any hope of moving America forward in its attitudes toward race, we must get black people to acknowledge and act upon their role in resolving this issue. This is not to suggest that black people alone can resolve the American race dilemma. Nor is it to suggest that white people have no obligation to come to terms with their role in resolving this dilemma. But too often the race dialogue centers around what “white America” must do and is totally neglectful of the role of black people.

The second effect is equally as consequential: preferences create their own “glass ceiling.” I don’t know why the defenders of such policies fail to acknowledge or admit the enormous effect that such policies have upon the attitudes of others. Does it ever occur to them that the reason black people and other “minorities” are not considered for more upper management positions, even in corporations that pound their chests about “celebrating diversity,” is that such corporations still consider “minorities” to be inferior and noncompetitive for higher positions?

Giving people who are classified in a certain group a “leg up” stems from the view that those individuals have limited capacity and cannot succeed without someone else’s generosity. It is easy to be “generous” when hiring someone to be the affirmative action officer or the community relations coordinator. That generosity ends, however, when a more responsible position becomes vacant. The person hired out of a need for diversity or because one wants to provide affirmative action is rarely included when candidates are being considered for chief executive officer. Too often, I have heard selection panels reply, “We have never viewed him (or her) as suitable for that position.” The reason is that affirmative action marginalizes its beneficiaries.

The people of California and Washington have begun to grapple with and resolve issues of race and ethnicity. It is of vital importance that the people in the rest of the nation too begin to resolve these issues. Unless this national reform proceeds apace, a long period of quiet turmoil in America is likely to be the result. Ultimately, the turmoil may no longer be quiet.

Throughout the debate about race preferences, opponents as well as proponents summon the words of Dr. King to help make their case. Obviously, no one knows what position Dr. King would have taken on this issue if he were alive today. There is one statement that he made, however, that should go unchallenged, and it can serve us well in our time: “Sooner or later all the peoples of the world, without regard to the political systems under which they live, will have to discover a way to live together in peace.”3 As a nation, America has got itself into one hell of a mess because of affirmative action preferences. Some groups of people believe it is their entitlement, whereas others are seething with anger about such programs. If the words of Dr. King are to come true, we must end the existing system of preferences that differentiate the American people on the basis of race, ethnicity, and gender. Only by doing that can we rededicate our nation to the principle of equality and bring social peace and harmony to America.

Notes

1. President Johnson, Special Message to the U.S. Congress, March 15, 1965, “The

American Promise.”

2. Ronald Reagan, speech to the Republican National Committee, Republican

Party Convention, August 17, 1992.

3. From Dr. King’s Nobel Peace Prize acceptance speech, December 10, 1964

(minus the middle clause).

==============================

Index

“Ability Ranges,” 298

Absentee fathers, 21, 121

Academic achievement: black poverty levels and, 261; black/white gap in, 246, 248, 259, 260, 272, 279; Charlotte-Mecklenburg plan, 239; Coleman definition, 233; expenditure per student and, 247; forced busing and, 268; math in integrated schools, 243; non-Asian minorities, 267; performance incentives, 270; racial balance and, 241, 245, 247, 254; school desegregation, 239–41, 254; SES levels and, 242

Acculturation, 45

Achievement. See Academic achievement

ACT, 265

Activism, political, 320

Adarand v. Pen˜a (1995), 203, 309, 329, 331

Affirmative action, 3, 70: academic support for, 78; antipreference vote, 365–66; Bakke decision and, 298; bureaucracy to support, 302; college dropout rate, 278; demise of, 277; disparity studies and, 208; employment policies, 196; initiative/referandum process and, 362, 364; Latinos and, 421; medical school admission, 127; politics of race and, 418; public opinion and, 293; racial balance and, 253; racial dichotomy, 419; rationale for, 138–40, 417–18, 422; Reagan administration and, 74; Regents, UC and, 415; support by ethnic groups, 55. See also Initiative 200; Proposition 209

African Americans, 16, 53, 89: attitudes on discrimination, 57–58, 59; aversion to surgery, 136; changing status of, 86; college admissions, 277; decline in violent crimes, 118; fertility rates, 100, 102, 123; historical victimization and, 20–21; index of dissimilarity and, 84, 85; inrush and disenfranchisement, 348; integrated neighborhoods and, 86; migration to North, 83, 222–23, 235, 248, 350; motivation and poverty, 58; parochial schools and, 280; physician’s ethnicity and, 141; poverty among, 5; as practicing physicians, 139; race relations and, 58–59; racial “profiling” and, 116– 17; real income per household, 173; school choice and, 285–86; stigmatized as inferior, 71–72; teenage births, 101–3; two-family model, 95; unwed mothers, 99; views on remediation, 55; working and middle class, 123. See also Black churches; Black leadership; Marriage

Afrocentricism, 171

After-school programs, 158–59

AGC v. Columbus (1996), 208

AIDS virus, 376

Alaskan Natives, 16

Alcohol, 116, 124; faith-based programs and, 156

Alien Land Law, 117

Alien Nation (Brimelow), 13

“Allotment era,” 392

American Civil Liberties Union (ACLU), 283

American Enterprise Institute, 372

American Indian Policy Review Commission, 398–99

American Indians, 7, 16: citizenship, U.S., 391; as practicing physicians, 139; preservation of culture, 402–3; recognized tribes, 392; separate-butequal status, 391. See also Assimilation; Tribal government

Amputations of limbs, 135

Anecdotal research, 205–8

Antidiscrimination policy, 198–99, 310

Antigen matching, 137

Antipoverty programs, 352

Apportionment rule, 322

Argentineans, 25

Armed Services Vocational Aptitude Battery test, 261

Armenians, 84, 92

Asian Americans, 128, 234, 353; academic achievement and, 260, 264; admissions to UC, 300; emphasis on education, 177; mortgage applications by, 175; nonminority status, 139, 295, 296; physician’s ethnicity and, 140–41; political issues, 357; school integration and, 230

Asian Indians, 84

Asian-owned firms, 209

Asians, 6, 7, 14; desire for neighborhoods, 89; intermarriage and, 1–2, 30

Assimilation, 48, 350; American Indians and, 393, 402; immigrants and, 37, 43; Indian Reorganization Act and, 395–96; marital melting pot and, 30, 31–32; multicultural programs and, 388–89; pluralism and, 44

Association of American Medical Colleges (AAMC), 127, 128, 138, 141

Atavistic power, 74, 75, 78–79

At-risk youth, 157–58; faith-based programs for, 158–59

Attendance, school, 269

Balkanization, 32

Ballot referendum process, 359–60

Benefits theory, 252, 253, 254

Big Brother/Sister programs, 121

Bigotry, 373

Bilingual education programs, 43, 65, 353, 387

Birth Control, 345

Birth rates, 99, 123, 235

Black churches, 153; denominations of, 157; faith-based charitable works, 155– 57; Lincoln-Mamiya study of, 160–61; outreach tradition of, 157–58; racial reconciliation and, 161–62

Black ghettos, 351

Black leadership, 371; black critics of, 374, 376; on discrimination, 372; protest politics and, 373; rank-in-file dichotomy, 371–72

Blackmun, Harry, 4, 19

Black-owned firms, 209

Blood-quantum, 392

Board of Indian Commissioners, 394

Bond, Julian, 6, 7

Bosnia, 408

Bowen-Bok study, 410–11

Brazil, 25

Brazilian, 296

Brimelow, Peter, 13

Broken homes, 269

Brown, Jerry, 367

Brown v. Board of Education (1954), 196, 219, 251, 278; de jure segregation, 232; policy failures/successes, 253; school segregation, 325, 326; token desegregation, 222

Bureau of Indian Affairs (BIA), 392

Burglary rates, 117

Bush, George H. W., 353

Bush, George W., 356

Bush, Jeb, 357, 407

Busing. See Mandatory busing

Cadaveric donors, 138

Cambodians, 23, 92, 170

Cancer, 128

Cardiac catherization study, Shulman’s, 131–34; media excess and, 133; second evaluation of, 133–34

Carter, Jimmy, 351

“Cascading,” 301

Casino tribes, 397, 399

Categorical formulas, 303

Catholics, 41, 345–46, 352

CAT test, 250–51

Caucasians, 16

Census, U.S.: ancestry/ethnic origin in, 20; modeling population change, 31; projection of minority-majority, 28; racial categories and, 17–18 Central Park East schools, 265

CEO America, 287

Charlotte-Mecklenburg plan, 227–28; academic achievement and, 239; longterm achievement, 250; mandatory busing and, 249; racial balance and, 232

Charter schools, 260, 283, 284

Children’s Scholarship Program, 287

Chileans, 25

Chinese Americans, 117; income levels of, 22

Citizens’ Initiative on Race and Ethnicity (CIRE), 7

City of Richmond v. Croson (1989), 202, 208, 313; disparity studies and, 203; “government’s compelling interest ,” 309; racial politics and, 212; statistical guidelines, 205

Civility, 271

Civil Rights Act (1964), 2, 21, 84, 197, 222; democratic equality and, 73; Irish Americans and, 345; school segregation and, 326; southern whites and, 352; Supreme Court and, 328, 331

Civil Rights Commission, U.S., 127–28

Civil Rights movement, 2, 254, 351, 370– 71, 379, 394; new direction, 373–74

CivilWar, U.S., 347

Clinton administration, 6, 32, 128, 202, 265, 351, 353; affirmative action, 408; on Asian American students, 296–97; choice plan veto, 284; low-income scholarship program veto, 286; Race Advisory Board and, 6

Clinton impeachment, 419

Clustering, 92

Coaching/teaching to test, 250

Coalition politics, 209

Cognitive skills, 21, 261

Coleman Report, 222, 241

College education, 174; admissions bias, 299; black/white degrees, 192–93, 261; dropout rate, 411; earning capacity and, 182–83; KIPP Academy and, 270; minority admissions, 277; tuition incentives, 260; wage premium, 184

Colombians, 25

Color blindness rule, 315, 325, 378, 413

Color-coded politics, 371, 374

Color-consciousness, 3–4

Colorectal cancer, 136

Commerce Department, U.S., 204

Commission on Civil Rights, U.S., 137, 142

Common Core of Data (CCD), 225

Communications Act (1995), 360

Community outreach programs, 159, 161

Compelling interest argument, 309, 314, 329, 330

Compulsory schooling legislation, 197

Congress, U.S., 2, 407–8

Congressional Black Caucus, 372, 375

Consensual coercion, 301–3

Consolidation, court-orderd, 248

Constitution, U.S., 32, 309; Indian tribes and, 393; slavery and, 322, 323

Consumer-oriented culture, 38

Contact theory, 255

Contracting. See Public contracting “Coolie system,” 22

Court-ordered desegregation, 245

Crime, 65; Asian-American groups, 117; economic growth and, 124; fatherless households and, 121; juvenile rates, 118; poverty and, 162; prevention programs, 120, 121, 122; profiling and, 116–17; against property, 117; race of victims, 116; racial-rate differences, 115; religion and, 156, 157

“Critical thinking,” 269

Cross-group friendships, 60, 61

Cuban Americans, 25, 41

Cultural conservatism, 355

Cultural groups, 15

Cultural inheritance, 38, 39

Cultural relativism, 171

Cultural stereotype, 132

“Culture-free” tests, 178

Current Population Survey (CPS), 14, 95– 99; wage and employment levels, 181–82

Curriculum, 260, 266, 270

Davis, Grey, 367

Dawes Act (1887), 394

Day care, 160

Declaration of Independence, 332, 417

De facto segregation, 222, 252

Deferential policy, 75–77

De jure segregation, 229, 232, 384

Delaware Tribe, 393

Demagoguery, 370–71

Democrats, 2, 345, 346, 347; abortion rights, 405; Asian Americans, 358; black constituency, 347–48, 351, 353, 354; geographic affiliations, 349; Hispanics and, 353, 355; I-200 and, 365, 406, 416; Indian issues and, 400; Irish Catholics and, 346; Jews in, 350; voter participation, 370

Demographic overrepresentations, 169

Demographics, 13–14; changes in, 254; educating children, 263; Hispanic population changes, 385; public perception of, 14; public school ranking by, 267; racial balance and, 235; school choice programs and, 284–85; school desegregation and, 221, 254; test-score adjustments, 265

Department of Education, U.S., 225, 264

Desegregation, school, 198, 219: benefits from, 249, 254; Brown decision and, 253; components of, 220; formal plans for, 226; magnet school programs, 247– 48, 254; neighborhood schools and, 253–54; prejudice and, 251–52, 255; Prince Georges County plan, 248; program/resource distribution, 241, 253; racial-ethnic categories, 225; racial quotas, 220; self-esteem and, 251–53, 255; social/educational effects of, 221– 22; social/psychological outcomes and, 238; voluntary transfer plans, 224; white flight and, 233. See also Academic achievement; Racial balance Deviance, 156

Dewey, Thomas, 348, 350

Dialysis, kidney, 137, 138

Directive No. 15, OMB’s, 18; ethnicity and, 25; Hispanics and, 23

Discrimination, 324: anti-Jewish, 343; baseline for measuring, 172; belief systems and, 168–69; black rank-in-file on, 372; generational attitudes toward, 57–58, 59; health care system and, 128; historic, 315, 330; laws affecting, 321; meaning of, 168; Mexican Americans and, 384; minorities and, 18, 20; Plessy decision, 325; preoccupation with, 177; race relations and, 55; racial, 23, 167, 198; residential patterns and, 83, 87; school resource-program distribution, 253; statistical disparities and, 170, 175, 176; subjective bias and, 176. See also Disparity studies; Public contracting Disparity studies, 203; anecdotal research and, 205–8; discrimination and, 204, 205, 206, 311; effects of MBE preferences, 212; legal challenges to, 204–5; reliability of, 205; results oriented, 208; statistical flaws in, 210; unverified sources, 207

Dissimilarity index, 226

District of Columbia (DC), 260, 284, 369

District size, 228

Diversity, 367, 409; college admissions and, 294, 295; ethnic, 13; health care system and, 144; intellectual, 312; Latino immigrants and, 387; post-preference period, 299–300; racial preferences and, 143–44

Divorce and separation, 97–98

Dole, Bob, 353

Dred Scott decision, 322–23, 325, 332

Drug abuse, 116, 269; faith-based programs and, 156; prevention programs, 160

Du Bois, W.E.B., 259

Due Process Clauses, 322

Dukakis, Michael, 351

Ecology, urban, 87

Economic outcomes, 167

Economic upward mobility, 343

Edison Project, 287

Education, 120: average weekly wages, 183; blacks and, 6, 7; black/white school enrollment, 191; compulsory schooling legislation, 197; high school graduates, 184, 260; parity in wages, 190–95; racial differentials, 182–83; racial gap, 7, 174; racial preferences in, 3; segregation and, 88; social promotion, 260; standardized testing, 177–78, 260; wage gaps and, 182, 187. See also College education; Desegregation, school; Tests Educational Testing Service (ETA), 265

Education Trust, the, 266

Eisenhower administration, 396

El Salvador, 385

Emancipation Proclamation, 347

Employment: African Americans and, 3, 8, 57; anti-discrimination legislation, 198– 99, 330; changes in fields of concentration, 193; full-time employment rates, 195; inner-city neighborhoods, 196; personal service sector, 194; racial preferences in, 3; teaching profession, 194

Employment discrimination, 59, 326, 330– 31

Endarterectomy, 135

English language, 40–41, 386

Environment, natural, 172

“Equal but separate accommodations,” 323

Equality, 267; educational, 278, 288; morality and, 73; opportunity and, 62– 63; racial, 70–71; white stigmatization and, 71

Equal Protection Clause, 4, 329, 413, 414

Ethiopia, 19

Ethnic diversity, 13

Ethnic groups, 16, 44

Ethnicity: American politics and, 343; Hispanics and, 24–25; immigration and, 63–66; preservation of, 38; racial preferences and, 297–98. See also Diversity Ethnic preference, 208

Ethnic relations, 53; complexity of, 54–55; lessening of tensions, 66

Exit polls, 365, 416

Exogomy, 42

Expenditure per student, 247, 263, 268

Exposure index, interracial, 233–34, 236; racial composition and, 237

Faith-based programs, 153; inner-city neighborhoods and, 155–57; new black leadership, 374–75; outside funding and, 161

Family, 95; affirmative action and, 77; black nuclear, 268; breakdown among blacks, 6; character and crime rates, 120–21; decline in size, 173; decline in unity, 123; gangs and, 123; single parent, 105–7; stability and religion, 156; twoparent, 99, 106

Fatherless households, 121

Federal Reserve Bank, 175–76

Female-headed households, 106

Fertility rates, 28, 29, 99–100

Fifteenth Amendment, 326

First Admendment, 411

Fitzgerald, John F., 346

Folk remedies, 136

Food stamps, 106, 120

Fourteenth Amendment, 324, 412, 413, 414

Franklin, John Hope, 6

Franklin Commission, 6, 7

Freedom-of-choice plans, 229

Free-lunch status, 256

Gang violence, 123, 159, 269

Gender-based preferences, 204, 208, 360; inequality and, 363–64; political coalitions and, 418; set asides, 360

Genealogical heritage, 391

General Accounting Office, 210

General Allotment Act (1887), 394

General election, 361–62

Generational attitudes, 58–59

German Americans, 344, 346–47

Germany, 2

Gerrymandering, 344, 413

“Glass ceiling,” 421

Global economy, 420

Goldwater, Barry, 2, 351

Gore, Al, 408–10, 414, 416

Government, U.S., 309; guidelines on ethnicity, 25; promotion of racial categories, 17, 18

Grandfather clauses, 348

Grant, Madison, 177

Great Britain, 2

Green v. New Kent County, VA (1968), 222; components of desegregation, 220–21; Southern school districts, 232

Griggs v. Duke Power Co. (1971), 327

Guatemala, 385

Guns, hand, 116

Harassment, racial, 119

Harlan, John Marshall, 3

Health, Education, and Welfare Department, U.S. (HEW), 224

Health belief model, 136

Health care system: foreign medical school graduates, 144; kidney transplantation bias, 137–38; minority diversity, 144; minority treatment bias, 129; patient preferences, 144; preventative care, 145; racial preferences, 127

Health disparities research, 130

Health Professionals for Diversity, 139

Heart disease, 135

High-density television (HDTV), 361

High school graduates, 184, 260; admission to UC and, 294; black women, 279; increase since Brown decision, 278; low academic skills, 267; parochial schools and, 280

“High stake” tests, 264, 265

Hispanic-owned firms, 209

Hispanics, 6, 7, 14, 16–17, 92, 353: academic achievement and, 260, 266; affirmative action and, 55, 208, 421; annual income of, 174, 175; civil rights movement and, 383; college admissions, 277; divorce and separation, 98; English language and, 41; exposure index and, 236; index of dissimilarity and, 86; intermarriage among, 1–2, 388–89; marriage rates, 96; modern medical practices and, 136; OMB catch-all classification, 24–25, 384; parental choice and, 285–86; parochial schools and, 280; physician’s ethnicity and, 141; political issues, 350; as practicing physicians, 139; as quasi-racial group, 23–27, 298; racial preference, 296; school desegregation and, 225, 226, 230–32, 235, 244; teenage births, 101, 103; unwed mothers, 99. See also Mexican Americans Hispanic-white imbalance, 230–31, 237

Historic discrimination, 330

Hitler, Adolf, 177

HMOs, 141

Hoover, Herbert, 347

Hopwood v. Texas (1996), 312

Housing discrimination, 326

Hypersegregation, 87

Hypertension, 137

Hysterectomies, 135

Ickes, Harold, 347

Identity, group, 115

“Illiteracy,” 269

Imbalance index, 229

Immigrants, 348, 358; assimilation and, 37; conflict between groups, 53–54; economic opportunity and, 65; ethnicity and, 63–66; intergroup tolerance, 38, 39; Irish Catholics, 345–46; Italian Americans, 349; Latino groups, 387; “legal oppression,” 27; linguistic unification, 40; personal achievement, 43; political parties and, 344, 345, 353; population growth and, 28; racial/ethnic boundaries, 45; reform in 1965, 2–3; from Third World, 39; values and policy attitudes, 64–65

Immigration Act, 3, 64, 352

Immigration Restriction League, 29, 31

Incarceration rates, 105, 106

Income, 27, 57; black/white ratios, 197; Hispanic households and, 386; innercity neighborhoods, 153; racial gap, 154, 173, 174; racial inequality in, 267; religious groups and, 17; segregation and, 87, 88; skill levels and, 261

Indentured servitude, 22

Indian ChildWelfare Act, 397

Indian Citizenship Act (1924), 395

Indian Claims Commission, 396

Indian Health Service, 392

Indian Reorganization Act (1934), 395

Indians. See American Indians Individualism, 419, 420

Indonesia, 170

Industrialization, 44

Inequality, 259, 363

Infant mortality rates, 128

Initiative-200, 139, 359, 362; corporate opposition, 406, 416; Democrats and, 416; labor unions and, 416; racial/ gender gaps, 364; support for, 363–64, 366–67, 415–16

Innate inferiority doctrine, 171

Inner-city hospitals, 145

Inner-city neighborhoods, 87, 153; black churches and, 153, 158; faith-based charitable works, 155–56; poverty in, 75, 154; public school system and, 277, 279; religion in, 155

Institutional racism, 373

Integration, 118, 120, 230; neighborhoods and, 62, 86, 89–92; open housing laws and, 62; shared values and, 60–63

Integrative geographic zoning, minimal, 254

Intellectual diversity, 312, 315–16

Intergroup differences, 169; causes for, 170–72

Intermarriage, 7; among Asians, 1–2, 30; among blacks, 1–2; ethnic groups, 30, 41–42; Hispanics, 388–89; Mexican Americans and, 30

Interstate Transportation Emergency Act (ISTEA), 407

Interviewer bias, 206

IQ controversy, 171

Irish Catholics, 345, 346

Italian Americans, 15–16, 349, 355, 386

Jackson, Andrew, 345

Jackson, Jessie, 354, 408

Jamaica, 19

Japanese Americans, 19, 117; income levels of, 22; WW II internment of, 21

Jefferson, Thomas, 345

Jews, 16, 41, 171, 346, 349

Jim Crow era, 53, 108, 174, 323, 332

Johnson, Lyndon, 4, 417

Joint Center for Political and Economic Studies, 285

Judicial system: decisions and, 321; racial “profiling” and, 119; strict “scrutiny” standard, 120

Justice Department, U.S., 204, 205, 407

Juvenile crime, 118, 269

Juvenile delinquency, 156

Katzenbach-Marshall thesis, 412–13

Kennedy, John F., 3, 19, 346, 348, 354

Kerner Report, 4–5, 6, 7; two-society model and, 83, 95

Keyes v. School District No. 1, Denver (1973), 224, 228, 230

Kidney transplantation, 137

Kindergarten children, 263, 264; educational problems and, 278

King, Martin Luther, Jr., 2, 3, 417, 421–22

King, Martin Luther, Sr., 348

Kiowa Tribe of Oklahoma v. Manufacturing Technologies (1998), 400

KIPP Academy, 269–71

Koreans, 19, 23, 84, 92

Labor markets: age factors, 189–90; black Americans and, 181; education and parity, 190–95; racial disparity, 182, 195–96; wage inequality, male, 185, 187, 189; weekly wage comparisons, 183, 184, 186, 188; women’s wage dispersion, 185, 186–87

LaFollette, Robert, Jr., 347

LaGuardia, Fiorello, 349

Language skills, 40, 140, 261

Latin America, 353, 355

Latinos, 24

Legacy of conquest, 26–27

“Level playing field,” 168, 175

Liberal orthodoxy, 5–6, 45–46; white guilt and, 70

Life expectancy, 128

“Life scores,” 265

Lincoln, Abraham, 346

Linguistic unification, 40

Literacy requirements, 348

Lodge, Henry Cabot, 346

Lundgren, Dan, 367

Magnet Programs, 247–48, 254

Malaysia, 170

Managed care, 361

Mandatory busing, 220, 407; academic achievement and, 268; Charlotte-Mecklenburg plan, 249; cross-district, 224; Green decision and, 220–21; Keyes decision and, 228; New Castle County plan, 246; Prince Georges County plan, 248; quality of education and, 221

Marital trends (1890–1998), 97

Marriage, African American, 95; with both spouses present, 95–96; divorce and separation, 97–98, 173; never-married women, 96; nonmarital births, 99–100; nonmarriage patterns and, 95–99; rates of, 96

Marriage patterns, 30, 388–89; breakdown or poverty, 105–7; intermarriage among blacks, 1–2; melting-pot assimilation, 31–32, 65; teenage marriage, 103; worldwide stability, 107–8

Math achievement, 241–42, 243; basic skill levels, 261; integrated schools and, 243– 44, 268

MBE (minority business enterprise) programs, 202; coalition politics and, 209; future of, 209–11; number of beneficiaries, 209–10; price preferences for, 202

McCain, John, 360

McConnell, Mitch, 360

Media, mass, 133, 136, 365

Medicaid, 106

Medical school, 127

Medical school admission: Asian students and, 142; black students and, 143; failure rate and, 142; Hispanic applicants, 142; racial bias, 141

Melting-pot model, 30, 37, 65; immigrants and, 37; marriage and, 31–32; religion and, 41

Mentoring, 160, 264

Meritocracy, 360

Mexican Americans, 23, 355; civil rights movement, 384; fertility patterns, 29; geographic concentration of, 383; Hispanic classification and, 25, 26; intermarriage and, 30; “nonwhite” classification, 24; residency in U.S., 385– 86

MexicanWar, 26

Middle class, 6, 240, 246; blacks in, 259, 376–77, 378; Hispanics in, 386; racial gap, 263

Migration, black, 83, 222–23, 235, 248, 350

“Milliken” II schools, 248, 249

Million Man March, 375

Milwaukee Parental Choice Program, 281, 282, 285; NAACP lawsuit against, 286

Minority communities, MBE programs and, 202–3

Minority majority, 14–15; myth of, 27–31

Minority physicians, 145

Miscegenation, 42, 325

“Model” schools, 248, 249

Mondale, Walter, 351

Morality, societal, 65, 420

Mortality, 28

Motivation, black, 58

Multiculturalism, 32, 43, 76, 79, 80, 387

Multicultural politics, 350

Multiethnic racial preferences, 90–91

Murder rates: arrests, 118; black vs. white victims, 120; black/white perpetration, 116

Murray, Patty, 416

NAACP, 6, 128, 265, 412; color-coded terms and, 371; school-choice objection, 283, 286

“Narrow tailoring,” 309, 329

National Assessment of Education Progress (NAEP), 238; case studies, 244–51; math achievement, 241–42; reading achievement, 243; report on education, 262, 279; research by, 241–44

National Center for Health Statistics (NCHS), 102

National Council of La Raza, 385

National Crime Victimization Survey (NCVS), 116

National Economics Research Associates, 207

National Indian Gaming Regulatory Act (1988), 399

National Institute of Education, 240

National Labor Relations Act, 347

National Longitudinal Survey of Youth (NLSY), 105–6; fatherless households and, 121

National Opinion Research Center (NORC), 60

National origins quotas, 2

National Urban League, 371

Navajo Indians, 392

Needs-based policy, 77

“Negro Problem, the,” 272

Neighborhoods. See Residential patterns Neighborhood schools, 253–54

New Deal programs, 347, 350

Nez Perce Tribe, 393, 394

Nicaragua, 385

Nineteenth Amendment, 349

Nixon, Richard, 346

Noble Savage Mentality, 403

Nonmarital births, 99–100; race-ethnicity of, 109

Nonmarital sex, 107

Northern school systems, 224, 229, 236; Hispanic-white exposure, 237; resegregation in, 237–38

Nuclear family, black, 268

Office for Civil Rights (OCR), HEW, 224– 25; standardized tests and, 264–65

“Old boy networks,” 211

One America, 31–33

Open housing laws, 61

Opportunity, 58–60; equality and, 62–63

Organ rejection, 137

Osteoporosis related fractures, 135

Otherness, 73

Out-of-wedlock births, 21, 78, 123, 268

Outreach programs, racially targeted, 310

Pacific Islanders, 16, 44–45

Parental choice. See School choice programs Parent-school contract, 270, 271

Parochial schools, 271, 282, 285

“Partial birth” abortion, 405, 416

Patient outcomes, 140

Patterson, Orlando, 6

Peabody Picture Vocabulary Test, 263

Pearl Harbor, 350

People for the AmericanWay, 286

“People of color” phrase, 24, 45, 418

Personal responsibility, 43–44, 373

Personal service sector, 194

PEW Health Professions Commission, 127

Pittsburgh study on treatment bias, 130

Plessy v. Ferguson (1896), 3, 323, 324–25

Pluralism, 44, 45, 47

Political freedom, 65

Politics, 7; American Indians and, 391; ethnicity and, 343; Irish Catholics, 345; party preferences, 344; of race, 212, 369, 418; redistricting and, 354; technocratic black mayors, 369–70; voter registration, 369

Poll taxes, 348

Population: growth projections, 28–29; immigrants and, 28. See also White population Portugal, 25

Portuguese, 296

Poverty, 5, 58, 377; academic achievement and, 261; crime rates and, 121, 162; freelunch status, 256

Powell, Colin, 354

Prenatal care, 105

Preschool children, 269

President’s Initiative on Race, 26, 32, 33

Price preferences, 202

Primary-care physicians, 144

Primary elections, 361, 370

Private schools, 256, 281, 283; choice programs, 285

Private sector, 209, 256

“Profiling,” racial, 116–17, 118, 119, 124

Property crimes, 117

Property rights, 322

Proposition 187, 356

Proposition 209, 139–40, 142, 295, 300; argument for initiatives, 315; California legislature and, 363; college admissions and, 410; effects of, 303–4; non-Asian American students and, 300–301; racial/ gender gaps, 364; ratio of vote, 360; support for, 363–64, 365, 405, 415; ticket splitting with, 406–7

Prostate cancer, 136

Protestants, 41

Psychological harm thesis, 252, 253

Public Agenda, 266

Public assistance, 279

Public-choice analysis, 320

Public contracting, 201, 329; Chinese Americans and, 22; discrimination in, 201–2; MBE programs and, 203; racial preferences in, 3; set asides and, 360, 407

Public school system: bureaucracies in, 280; demographic ranking, 267; innercity children and, 177; parental involvement and, 280–81; private management of, 287; scapegoating for failures, 280; school choice and, 285; suburban, 281. See also Desegregation, school Puerto Ricans, 25, 41, 355, 385

Puritans, 344

Quotas, 310; affirmative action and, 360; Bakke decision and, 411; legislation affecting, 361; national origins, 2; racial, 220, 320, 343, 351, 358; Swann decision, 224; voter opposition to, 416–17

Race-based programs, 19, 203, 204, 219, 310, 313: adoption policies, 314; ballot referendums and, 359; individualgovernment relationship and, 417–18, 420; set asides, 360; tribal courts, 394; voter opposition, 416–17. See also Racial preferences Race classifications, 15–20, 44–45, 203, 309; constitutional latitude, 314; Croson decision and, 311; Directive 15 and, 18– 19, 23, 25; judiciary opinions on, 313; strict scrutiny rule and, 329, 412

Race/gender specific morbidity, 135–36

Race-neutral policies, 139, 303, 310; preference plans and, 314; race classification and, 310; race discrimination and, 311

Race relations, 55, 251–53; attitudes and, 251; black/white prejudice, 251–52; contact theory and, 255; desegregation and, 252; group attitudes on, 58–60; self-esteem, 251–52

Races, 18: genesis of concept, 16; government promotion of, 17; nineteenth-century social science and, 16, 18; oppressed, 27; patient outcomes, 140. See also Race classifications “Race suicide,” 29

Racial balance, 222–32, 312: achievement gap over time, 246; affirmative action, 253; black/white test scores and, 245; Brown decision and, 253; court-ordered desegregation, 245; definition of, 232; desegregation and, 220, 221, 252; dissimilarity index and, 226; educational inequality and, 278; exposure index, 236; formal desegregation plans and, 226; Hispanic-white imbalance, 230–31; large districts and, 228–29, 235; racial composition and, 237; ratios by race, 223; Swann decision, 249; trends in, 235. See also Academic achievement; Mandatory busing Racial guilt, 69–70

Racial preferences, 3–4, 127, 208, 297, 320–21, 351: ability ranges and, 298; academic performance and, 141–43; antipreference vote, 365–66; Boalt Hall case, 298–301; college admissions and, 278, 293–94; compelling interest and, 314; Congress, U.S. and, 407–8; consensual coercion, 301–3; court remedies, 319; educational reform and, 288; initiative/referendum process and, 362; intellectual diversity, 312, 315–16; legislation affecting, 320, 361; medical school admission, 127, 128; public opinion and, 301; quotas (set asides), 295; racial diversity and, 143–44; rationale for, 138; Regents, UC and, 415; strong evidential basis for, 312; UC admissions procedures, 294–96, 314. See also Affirmative action; Initiative-200; Proposition 209

Racial progress, 54

Racial reconciliation, 161–62

Racial supremacy, 4

Racism, 1, 6, 122; anti-black, 21; disparity in health treatment, 129; health care and, 128; innate inferiority doctrine, 171; integrated neighborhoods and, 86; police “profiling” and, 116; standardized tests, 266

Rainbow/Push Coalition, 371

RAND Corporation, 143, 242

Reading skills, 240; desegregation and test scores, 245; NAEP tests and, 242–43, 247, 262; racial balance and, 268

Reagan, Ronald, 74, 417

Reagan Democrats, 407

Reasonableness Clause, 331

Reconstruction period, 323–25

Reform, educational, 287–88. See also School choice programs Regents, UC, 294, 295, 415

Regents of the University of California v. Bakke (1978), 298, 312, 328, 411

Religion, 155; and crime, 156, 157; deviance and, 156; inner-city neighborhoods and, 155

Religious schools, 282, 283

Remediation, 55

Republicans, 345, 351; abortion rights, 405; Asian Americans, 351, 357; blacks and, 347, 351, 354–55, 372; geographic affiliations, 349; German Americans in, 346; I-200 support, 365; Prop 187 and, 356–57; race-based programs and, 362; white Catholic voters and, 352; women’s enfranchisement and, 349

Resegregation, 220, 221, 230, 232; demographic change, 238

Reservations, Indian, 392

Residential integration, 118, 120

Residential patterns, 57, 87–89; changing patterns of, 84–87; discrimination and, 59; economic status and, 84; group attitudes on, 61–62; group preferences and, 84, 87, 89; index of dissimilarity, 85, 86; integration, 62, 83, 86, 89–92; open housing and, 61, 63; status of blacks and, 86

Response bias, 206

Reuther,Walter, 351

Richardson, Bill, 357

“Riggs Amendment,” 407

“Right to Life” advocates, 405

Risk-adverse politics, 362

Robinson, Jackie, 348

Rockefeller, Nelson, 350, 351

Role models, 6, 313, 315

Roosevelt, Eleanor, 347

Roosevelt, Franklin D., 347, 350, 395

Rwanda, 409

SATs, 264, 265; racial preferences and, 410, 411; UC admissions and, 294

Scandinavian Americans, 347

School boards, 241

School choice programs, 281–87: black rank-in-file and, 371–72; changing demographics, 284–85; Cleveland School system, 283; educational reform and, 287–88; Florida’s reform program, 284; litigation against, 283; Milwaukee schools and, 285; minority support, 285–86; public opinion and, 284–87. See also Vouchers, school School dropout, 105, 184; colleges and, 277–78; Mexican Americans and, 384; Milwaukee Public Schools (MPS), 279

School integration, 118, 120

Science skills, 263

Segregation, 69, 83; changing residential patterns and, 84–87; declines in, 92–93; de facto, 222; group choice and, 89; in health-care system, 128; income levels and, 87, 88

Self-discipline, 271

Self-esteem, 251–53, 255, 387

Self-governance, tribal, 394, 397

Set asides, 295, 328, 360, 407

Sex, nonmarital, 107

Shaker Heights Study, 263–64

Simpson verdict, 419

Single-parent families, 105–7; academic achievement in, 268; children in, 122; crime rates and, 121

Skill level, 260–61, 262

Slavery, 20, 53, 62, 122, 319; constitution and, 322; immigrants and, 37; racial shame and, 71

Small Business Administration, 202

Smith, Al, 350, 354

Social legislation, 196–97

Social Security Act, 347

Societal discrimination, 409

Socioeconomic status (SES), 241, 251; black achievement levels and, 242

Southern school systems, 222, 229, 236

Special-interest groups, 281, 284; legislation for, 320

Specialists, medical, 144

SSI, 106

Standard curriculum, 260

Standardized tests, 177–78, 238; across curriculum, 260; bias in, 280; blackstudent performance, 260–61; critics of, 264–67; “disadvantaged” minorities, 267; discrimination and, 264; legislation against, 266; SES levels and, 242; statewide, 265

Statistical Abstract of the United States, 16

Statistical disparities, 170, 173, 176

Stereotyping, racial, 6, 36, 55, 56, 132

Stoddard, Lothrop, 29

“Strict scrutiny” standard, 119, 309, 310, 314

Stroke, 135

Styron, William, 69

Subjective bias, 176

Subsistence lifestyle, 393

Substance-abuse prevention, 160

Supreme Court, U.S., 196, 224, 249: affirmative action, 321; benefits thesis and, 254; conflict with Constitution, 324; financial incentives and, 360; political activism of, 320; promoting discrimination, 327, 328, 330; psychological harm thesis, 252; on racial preferences, 315, 319; societal discrimination and, 409; tribal sovereign immunity, 400–401. See also specific cases Swann v. Charlotte-Mecklenburg Board of Education (1971), 224, 232, 249. See also Charlotte-Mecklenburg plan Sylvia Cohen v. Little Six, Inc., Mystic Lake Casino, 401–2

Targeted recruitment, 310

Taxicab drivers, 120

Teachers’ union, 281, 283

Teaching professionals, 194, 240, 260; African-American, 268–69; classroom size, 268; role models, 270

Technocratic black mayors, 369–70, 376– 77, 378

Teenage births, 101–3; decline, 123; decline nonmarital rates, 103–4

Teenage pregnancy, 8, 77, 181; community outreach programs and, 160; Detroit inner city, 378; religion and, 156

Television, 116

Termination policy, 396

Tests, 261, 263: coaching/teaching to, 250; “culture-free,” 178; “high stakes,” 264, 265; racial bias, 265; reading skills and, 245; SATs, 264; scores and racial balance, 245. See also National Assessment of Education Progress (NAEP); Standardized tests Third World immigrants, 39

Ticket splitting, 407

Tolerance, intergroup, 38

Transportation Department, U.S., 407

Tribal government, 391, 393, 397, 398; court fairness under, 399; expanded jurisdiction, 398

Truman, Harry, 348

Tuskegee Syphilis Study, 140

Tutoring programs, 159, 264

Two-parent families, 99, 106; black achievement gains and, 242; crime rates and, 121; revisionist and, 122

Two-society model, 6, 54, 83, 95

Two-tiered health care, 144

“Ulteriorality,” 70

Unemployment, inner-city, 154

Union voters, 365

“Unitary” school systems, 221, 253–54, 255

United Steel Workers v. Weber (1979), 328

Universal health insurance, Canada’s, 143

University of California (UC), 294–96, 297–98

Unwed mothers, 99, 107

Urban Institute, 205

Urban League, 286

Urban schools, 268, 279

Uterine fibroid tumors, 135

Venezuelans, 25

Victimization, 116, 120; historical, 20–23, 79; of minorities, 4–5, 75

Vietnamese, 23, 92

Vocabulary skills, 261, 268

Vocational training, 120

Voluntary transfer plans, 224, 254

Volunteer programs, 155, 159

Voter participation, 370, 374

Voting rights, 324, 348, 349

Voting Rights Act (1965), 2, 21, 326, 350, 352

Vouchers, school, 284, 371–72, 378

Wage levels, 174, 175. See also Labor markets Wagner, Robert, 347, 350

Wallace, Henry, 347, 348

Washington Scholarship Fund, 286

WASP, ethnic, 47

Watts riots (1965), 4

Welfare, 106, 120, 123, 372, 407, 419

Wheeler-Howard Act (1934), 395

Whig Party, 346

White-black relations, crime and, 115

White flight, 233, 234, 248

White guilt, 70

White population: affirmative action and, 418; divorce and separation, 98; fertility rates, 99, 101; juvenile crime, 118; limited interracial contact, 92–93; moral authority of, 76; never-married women, 96; residential patterns of, 89; wage rate disparity, 185–90. See also Academic achievement White racism, 1, 7, 71, 73

White supremacy, 18, 71

WIC program, 106

Williams, Mennen, 351

Wilson, Pete, 356, 363, 406

Wilson administration, 347

Women, 349; affirmative action and, 418; black/white wage dispersion, 185, 186– 87; college degrees, 192–93, 279; enfranchisement of, 348; gender-based preference and, 301; high school graduates, 279; never-married whites, 96; political coalitions and, 418; school enrollment, 192; wage parity, 191, 193

Women-owned businesses (WBEs), 202

World War II, 5, 21, 117, 219, 265, 350, 409

Writing skills, 263, 271

Young, Andrew, 352, 406

Young, Coleman, 377

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