Robert H. Bork, AEI's John M. Olin Scholar in Legal Studies, and Roger Wilkins, Clarence J. Robinson Professor of History and American Culture, George Mason University, met at AEI on April 11, 1995, to discuss the theory and practice of affirmative action. The session, moderated by Ben J. Wattenberg, senior fellow, was part of AEI's Amgen Forum, a series of public policy debates, lectures, and conferences sponsored by Amgen, Inc. An edited summary of the discussion follows.
Robert H. Bork
Preferential policies for groups said to be disadvantaged or discriminated against have been tried all over the world. Almost everywhere they have the same results: the policies are announced as temporary, but not only are they not temporary, they endure and expand to include more and more groups. In the United States today, affirmative action programs actually apply to two-thirds of the American population.
Preferential policies also create group hostilities. Some societies that have employed these policies have had bloody riots and, in at least one case, a civil war. Certainly, group hostilities between the races are rising in some segments of the U.S. population, most notably in our universities.
Affirmative action harms both blacks and whites. Whites are obviously harmed when someone who has never discriminated against anyone loses a chance for a job or a place in college to someone who has never been discriminated against on a criterion other than merit.
But blacks and Hispanics are harmed as well, as when top universities competing for minority students admit applicants who are not fully qualified for a particular institution. Seventy percent of the black students who matriculate at the University of California at Berkeley, for example, fail to graduate. Many of these students would have gotten a fine education and graduated had they gone to less demanding schools. Minorities also suffer when their legitimate accomplishments are rendered suspect by the existence of affirmative action.
Of all the groups seeking to benefit from affirmative action programs, I believe that black Americans are the only ones with anything approaching a legitimate claim. I would therefore abolish affirmative action for women and other ethnic groups right now and phase it out gradually for blacks in some way that does not cause excessive pain and suffering.
Let me stipulate at the outset that affirmative action is not always practiced perfectly. There have been occasions where, for racial reasons, a black person was placed in some job or position where a qualified white person might otherwise have been placed. If that were not the case, why would Judge Bork be a scholar here at AEI and Clarence Thomas a justice on the Supreme Court? George Bush gave affirmative action a bad name!
Nonetheless, I am a strong proponent of affirmative action--not as an African American or, obviously, as a woman or an Asian American--but as an American who has lived here for sixty-three years and whose family helped to build this country as slaves and as free people. I support affirmative action because it is good for my country.
I was born in a segregated America. I remember the enormously talented people of my parents' and grandparents' generations whose lives were stunted by a culture thick with racism. Over the past thirty years, a more meritocratic America than the one into which I was born has begun to develop and to utilize a broader array of the talents of all its citizens.
America is not a perfect country, and affirmative action is not a perfect program. But Lord knows, when I look at women working on telephone lines, blacks editing major newspapers, other minorities serving on the faculties of distinguished universities, and even an integrated Detroit police force in place of the all-white police that we feared when I was a student at the University of Michigan in the 1940s and 1950s, I know I am seeing a better America.
Affirmative action did not drop down out of the sky to punish white men. Americans developed affirmative action because we had significant problems of exclusion, denial, unfairness, and limited opportunity for a whole range of people. Blacks have had 346 years of negative action and denied opportunities, while for whites those opportunities accumulated across the generations. We have not come near to correcting the damage done in the first 346 years in the past 31, but we are making progress.
It is unfortunate that racial conversations in the United States are so rarely civil. There is a lot of mythology and ignorance about race in America, and more than a few politicians who are flat-out demagogues on the subject. They say the most outrageous things in the most pleasant tones and expect you to reply in a civil way to outrageous falsehoods.
A few weeks ago, the Speaker of the House of Representatives--a man with a Ph.D. in history--was asked whether he did not think that the centuries of oppression suffered by black people in the United States made affirmative action justified in the case of blacks. This most famous former history professor in the United States said, "No. What happened to blacks could be said of any number of Americans--for instance, the Irish, who were discriminated against by the English."
That is not civil. That is not truthful. That is not a responsible use of the great megaphone that this man has. So if black people get upset, it is not because we are inherently mean, but because we feel abused and brutalized by such terribly irresponsible uses of power.
Professor Wilkins referred to the fact that many more blacks, women, and others are now working in certain desirable occupations than they were in the past. In fact, if one examines the trend lines in blacks' and women's employment starting well before the major civil rights laws of the 1960s, as such scholars as Thomas Sowell and Charles Murray have done, one could have predicted that blacks and women would be pretty much where they are today without any government action. It might have taken a bit longer without the laws, but it is clear that the old barriers were already breaking down.
On the negative side, I have seen two separate estimates that the gross national product is 4 percent lower than it would be otherwise because of affirmative action. If that is so, then we have paid an enormous price, both in money and in increased social hostility, to accomplish not much at all.
I just do not believe that. If you look at the dramatic improvements in the lives of blacks and women in this country since 1965, you cannot deny that the laws and policies of the past thirty years have had a tremendous impact.
With respect to affirmative action making the accomplishments of minorities somehow suspect, do you really think whites look down on a black college graduate with a good job who was helped by some affirmative action program more than they look down on a poor black who is not even working?
I must cite Thomas Sowell again, because he says it best: "Prejudice is free, but discrimination has costs." One of the reasons that discrimination was breaking down in this country is that, as businesses discovered how much it really costs to discriminate, they stopped doing it.
One example Sowell gives is that of the bus companies in the South that opposed government decrees requiring them to segregate their passengers--not because they were good-hearted folks, but because it cost them customers. Discrimination costs money to businesses that engage in it. That--not affirmative action--is why it was breaking down steadily.
So far we have been discussing affirmative action as if it somehow began to operate in a society where everyone was equal. Well, that is just not true. Affirmative action was developed in order to combat real fears and tenacious racism and sexism, all of which still exist in this society today. As Justice Harry Blackmun said in the Bakke case, in overcoming racism we have to take race into account.
Many argue that when you take race into account, then somehow white people are deeply harmed. I think that is wrong. What has really happened has been that white men, who enjoyed wonderful advantages in many aspects of American life up to 1965, are now forced to compete with women and minorities for all kinds of good things, and they do not like that. I do not believe that affirmative action, properly applied and used, is reverse discrimination.
Finally, blacks in America know darn well that affirmative action has not caused people to be upset with each other racially. There have been racial problems in America since 1619, when the first blacks were delivered here; there were racial problems in the 1930s, 1940s, and 1950s; and there are going to be racial problems through the next century: not because of affirmative action, but because racism is a deep and permanent part of American culture.
I am not so sure about racism being a deep and permanent part of American society, but I agree that there will be color-consciousness for as long as this country exists. I do wish to point out, however, that affirmative action has almost nothing to do with discrimination. This country is thick with laws and agencies designed to root out discrimination, such as the EEOC and the Civil Rights Division of the Department of Education. We have all sorts of contract compliance boards monitoring employment. Discrimination can be wiped out by these and other statutes and agencies and by private lawsuits. Therefore, anybody who gets a job today because of affirmative action is someone who cannot show that he was discriminated against. The only way affirmative action benefits somebody who has actually been discriminated against is by sheer coincidence.
Let me tell you how it used to work in the days before affirmative action. As far back as the days of President Franklin Roosevelt, there were federal agencies with names like the Fair Employment Practices Commission that investigated complaints about discrimination by companies that received government contracts. When asked why they did not have any black employees, these companies would always say, "We tried, but we couldn't find any." And since these agencies had no teeth, no enforcement authority, nothing was ever changed. That is why we need goals and timetables: because in dealing with some people, relying on good faith is not enough.
Affirmative action does not help just black people, it helps white people as well. When youngsters from different backgrounds come together in a university and learn that much of the awful stuff they hear about each other is not true, all of us benefit.
On the issue of the permanence of preferential policies, I believe we are not near the point where we can think of getting rid of them now. But there is nothing wrong with setting up a procedure whereby they are reviewed every fifteen years or so to see where we are.
There is no escaping the fact that blacks and whites have different perspectives on American society. We blacks have had experiences in America that most whites will never have. I have had the Los Angeles Police Department point loaded guns at me as they pulled me from a car in which I was riding with a white man. I was dressed in a coat and tie, and in fact was at the time an employee of the federal government. Well, that does give a person a certain attitude about the LAPD and about the police in other places that white Americans would have a hard time understanding.
It is difficult to have civil conversations when people refuse to admit the solid evidence you bring to the table from the experiences of your life. It is difficult for white Americans to deal with these things, because it is a part of this culture to dismiss the experiences of black Americans and to superimpose on us the preconceived notions that many--not all, but many--white Americans hold.
Every white American who opposes affirmative action is not a racist. But some of the white Americans who oppose affirmative action are most definitely deep-in-the-bone racists.