"Night has fallen," said a civil-rights leader of his cause after the Supreme Court significantly narrowed the scope of affirmative action this past year.
Well, a majority of the House and Senate is now poised to bring on a new dawn. The Kennedy-Hawkins Civil Rights Act of 1990 seeks to undo the five unfavorable Supreme Court decisions of 1989 and ensure that racial preferences are enshrined in law.In its most important affirmative-action case (Wards Cove Packing vs. Antonio), the court held that a racial imbalance in the workplace is not in itself proof of discrimination.
Discrimination is proved only if the aggrieved can additionally show that the hiring criteria used by the employer were not explained by legitimate business considerations (i.e., merit selection).
Kennedy-Hawkins overturns that principle. Racial disproportion would itself be regarded as discrimination until proven otherwise - by the accused.
The employer must demonstrate that his employment practice - say, requiring a Ph.D. in hiring a college professor or preferring a member of the Law Review in hiring at a law firm - has a "substantial and demonstrable relationship to effective job performance."
Can a university prove that a person without a Ph.D. can't teach? Can a law firm prove by objective evidence that excelling in law school is necessary for being a corporate lawyer?
If not, and if the resulting work force is not racially balanced, then just considering these criteria in hiring is illegal because racially discriminatory.
The claim that disproportionate racial representation is in and of itself proof of racial discrimination is not only patently false, it is bad policy.
It is a formula for the imposition of racial quotas. Any employer who dares hire people in such a way as to produce a work force that is not a racial reflection of his community knows that he risks being sued. He knows, too, that if he cannot produce objective evidence linking his hiring criteria to job performance (say, good high-school grades with being a good salesman), he loses.
The natural inclination of any employer will simply be to spare risk and expense by imposing on himself a quota system and hiring people according to race.
This policy of quotas-by-threat is packaged under the politically unassailable name of civil rights. But this bill is not about civil rights. Kennedy-Hawkins is the Racial Preference Bill of 1990.
What is wrong with racial preference for a race so long discriminated against? Racial preference of any kind violates basic principles of equal justice.
Yet affirmative action can be justified on pragmatic grounds: Allowing a long oppressed black community to advance by short circuit helps create the essential social nucleus for black advancement - a new and growing middle class, established almost by government fiat.
That is the trade-off. Affirmative-action supporters (myself included) were prepared to sacrifice principle in order to produce an unmitigated social good. But what if the good is highly mitigated? If affirmative action actually harmed blacks, it would then be entirely indefensible.
After 20 years, and with increasing urgency, some black intellectuals are saying exactly that.
The key to their case that affirmative action harms blacks is that preference implies inferiority. The implied inferiority not only is demoralizing for blacks, it actually aggravates the white racism that affirmative action is supposed to counteract.
"Much of the `subtle' discrimination the blacks talk about is often (not always) discrimination against the stigma of questionable competence that affirmative action marks blacks with," writes Professor Shelby Steele (New York Times Magazine, May 13).
"The effect of preferential treatment - the lowering of normal standards to increase black representation - puts blacks at war with an expanding realm of debilitating doubt."
This self-doubt is rooted in what black writers Jeff Howard and Ray Hammond call "rumors of inferiority." Affirmative action advertises and amplifies the rumor.
In trying the cure the effects of racism, it perpetuates racist myths by making any successful black carry the stamp "Preferred, Thus Presumed Inferior." No one asks but everyone thinks: Did that black professor-dentist-executive make it on merit or on race?
Steele's views on this terrible psychic toll of affirmative action is not the majority view among a black leadership pushing hard for Kennedy-Hawkins.
They calculate that the stigma of inferiority may be a cost of affirmative action, but worth the price to produce further black social advancement.
That is a difficult calculation to make. But one thing is clear. Affirmative action has turned out to be far more costly than had previously been thought.
It dispenses unequal justice. It Balkanizes communities. It distorts the merit system. It pits group against group. And now, it attaches a question mark to every real black achievement.
Steele is right. Affirmative action costs more than it is worth. Kennedy-Hawkins is an attempt to resurrect an idea whose time has passed.