By Paul Moreno 

January -- Advocates of racial preferences have finally found a law with which to defend their policy:  Inertia. 

The NAACP has urged the City of Boston not to appeal a federal appeals court decision that struck down a refined racial quota system for admission to the prestigious Boston Latin School.  The group fears that the Supreme Court will use the case to reinforce its rulings that have limited the government's power to classify citizens on the basis of race.  “It's a curious turn of events in American civil rights law, to see the avoidance of the Supreme Court is now a goal,” said the lawyer for the white student who won admission to Boston Latin. 

It is indeed curious, but increasingly common.  Last year the NAACP took the extraordinary step of paying off a white plaintiff who had been fired so that a school district could promote “diversity.”  It paid $430,000 to remove the “case or controversy” that permits a federal court to review a public policy.  Knowing it would lose the case and that a precedent harmful to “affirmative action” would be set, the NAACP hushed the plaintiff up. 

At the same time that the City of Boston was being urged to drop its plan to defend its quota system, the University of Massachusetts announced a new “diversity” strategy.  The philosophy professor who is the co-chair of the “Chancellor's Council on Communication, Diversity, and Social Justice” said that their goal is to “convince students, staff, and administrators alike that diversity isn't a code word for preferential treatment of particular ethnic groups, but rather a quality that benefits everyone.” 

So the code-word of “diversity” will be wrapped in more verbiage.  “We're all becoming part of an increasingly global world,” said the philosopher/commissar, in what may be a sign of what happens to language and thought in a university constructed under affirmative action principles. 

In Boston and Amherst the strategy is to avoid court challenges and change the code-words, and let the inertia of affirmative action to allow them to carry on their work. 

A Partial Retreat 
All over the country, bureaucrats have been devising ways to maintain racial preferences in the wake of color-blind court decisions and referenda.  The people who created affirmative action without democratic consent are not going to let it be repealed by majorities, and they will defy the judges who provided the legal dressing for their unpopular policies.  Created ex nihilo by judges and bureaucrats, affirmative action now has large institutional and cultural constituencies that will make dismantling it harder than creating it. 

Recent Supreme Court decisions represent a partial retreat rather than a decisive turn away from affirmative action.  In perspective, these decisions are fine-tuning by the Court, particularly by its most politically sensitive “judicial statesmen,” Justices O’Connor, Souter, and Kennedy.  The Court has never declared a blanket prohibition on racial classifications along the lines of John Marshall Harlan’s celebrated dissent in Plessy v. Ferguson:  “In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.”  His sense of the rule is commonly reduced to the phrase, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.”  On the contrary, as legal scholar Andrew Kull notes in his book, The Color-Blind Constitution, the Court has an interest in maintaining racial classifications—they allow the Court to call the shots. 

The Court has not overturned the key holding of the Griggs case (1970), that racial discrimination can be established on the basis of statistical evidence, and that policies that have a “disparate impact” on minorities constitute a prima facie case of discrimination.  The Court has allowed the federal government wide latitude in race-based public policies.  The states have been held to a stricter standard, but can still prove that racial preferences are an appropriate remedy to identifiable discrimination in the past against protected racial groups.  The Clinton administration and state officials have shown that they will maximize the discretion given to them by the Court to keep preferential programs going. 

Federal judges took their cues from bureaucrats like Alfred W. Blumrosen, the principal architect of affirmative action at the Equal Employment Opportunity Commission in its first years.  Blumrosen sees the development of affirmative action as part of what he calls “the law transmission system,” by which expert bureaucrats get federal courts to transmit their rules down to corporations and citizens.  Under this system, legislatures pass extraordinarily vague mandates and let courts and bureaucrats interpret them.  Blumrosen noted in 1993 that “an acceptable standard for assessing the state of minority employment opportunities has not been established in public consciousness or private opinion….  Because of the underlying tension between the need to provide meaningful opportunities to women and minorities and a legitimate concern about a drift toward proportional representation, the time for settled law on this issue has not arrived and might never come.”   Settled law, as we have seen, is the thing affirmative action advocates want to avoid. 

Institutionalization 
Perhaps more important than these political and legal considerations is the fact that after thirty years affirmative action has become part of the culture, an ingrained habit in corporations and schools. 

Big business has come to terms with affirmative action, because it does not care about discrimination, but about profits.  The largest employers can absorb the costs of hiring less productive workers if their competitors do likewise, and quota hiring is less expensive than defending against individual discrimination suits.  Above all, quotas are predictable and orderly.  The largest employers, especially if they enjoy monopoly or near-monopoly market power, can easily pass the cost on to consumers.  To insist on strict merit employment would be costly—it would expose them to suits by minorities and whites and force them to be fair. 

It is important to recognize that minority racial group preferences do not only discriminate against whites as a group or against white individuals, but against minority individuals as well.  The quota shields the employer against individual discrimination suits—from whites because, quite simply, it is not really illegal to discriminate against them; and from minorities because a quota nullifies the crucial element of a discrimination suit, the “underrepresentation” of minorities.  Individual minorities may sue, but without the help of the government.  (This was the significance of the 1977 Weber-Steelworkers case.  The Court effectively immunized employers against “reverse discrimination” suits by whites.)  Fairness can be expensive; inertia is on the side of business’ continuation of affirmative action.  Indeed, affirmative action and “diversity management” have become big business, not just for lawyers and bureaucrats but for consultants of all kinds. 

Of course, higher education has not only institutionalized affirmative action but in large part dedicated itself to and constructed its identity around the dogma of “multiculturalism.”  The Supreme Court in the Bakke case (1978) struck down hard-and-fast "quotas," but allowed colleges to make race-based decisions for the sake of "diversity."  The universities have defined merit in racial and ethnic terms, and there is no cost consideration working against this.  Hard-and-fast quota systems were invalidated in Bakke, but universities have employed varieties of double standards for nearly two decades, denying all the while that their decisions were “based on race.”  Race-consciousness drives not only the forms and structures of the universities, but the programs and courses they offer, the content of what they teach and the research they perform.  Administrators and faculty are excited about creating a world in which rewards are distributed along racial, ethnic, gender, and sexual orientation lines—it is their vision of justice. 

After Inertia 
The NAACP fears that the forward momentum of affirmative action may be halted if courts revisit and democratic majorities act against racial preferences.  Business could respond to its economic interest in nondiscrimination and merit employment.  And it is possible that academic support for affirmative action would collapse in the face of political pressure as universities usually do. 

But if it came to that, what would take the place of affirmative action?  Unless we can countenance a repeal of all nondiscrimination laws and allow people to discriminate for any reason they want, we must assume that the core of the Civil Rights Act, in its original form, will remain:  It will be illegal to discriminate against an individual on the basis of race.  And that core principle poses this fundamental problem:  It is very difficult for anyone to prove that a choice was made “on the basis of race.”  In effect, the victim has to prove that race was the sole or predominant reason for his treatment, or that the non-racial reasons were mere pretexts (like “diversity”) for racial discrimination.  It will be difficult for white males or Asians to prove "reverse" discrimination against them. Even if compulsory affirmative action is repealed, the difficulty of proving discrimination, which operated to the disadvantage of minority group members from 1945 to 1970 (when discrimination was prohibited by many states without affirmative action) will now be an advantage for minorities and a shield for the perpetuation of voluntary affirmative action. 

Thus it is likely that the relatively minor steps that have been taken toward ending preferential treatment based on race, even if they are the first steps toward a larger repeal of “affirmative action,” will not do much to change our tendency to judge people by the color of their skin rather than by the content of their character.  Supporters of “affirmative action” can take comfort in this.  Indeed, racial preferences have become so deeply ingrained in America that the NAACP should lead the effort to repeal not just affirmative action, but the entire Civil Rights Act, and thus allow companies and universities to retain and redouble their preferential policies.