ls.
Republicans are relishing the difficulties that the rollback of preferences will cause Democrats forced to choose between their civil rights constituencies and what left of their blue-collar support. Which, of course, is why even such Republicans as Senate majority Leader Bob Dole and California Governor Peter Wilson, not long ago regarded as
among the steadfast supporters of affirmat tion, flipped on the issue and why they d soon keep it a question of either-or: colo scious or color-blind. It s hard to think of a political wedge to use on the Democrats ne> It could kill Clinton in California, a state ind able to his re-election. It could make today  tensions look benign next to what follows.
Aire we prepared to accept the larger effects of an absolute ban on racial preferences?
But this ought not to be that kind of q the issue is too complex, too nuanced, too stantial, too slippery in definition, too divi debate it in such terms is almost certain to e and distort whatever outcome the chooses and to assure a Democratic disast
Between Black and White
Affirmative action has produced some unreasonable results. In San Francisco, fo pie, substantial numbers of high-achieving students are denied entrance to Lowe
Reprinted with permission from The American Prospect Summer   z
p ' summer 1995, pp. 38-43.   1995 by New Prospect, Inc.
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47. So You Want to be Color-Blind
School, a selective public institution, to make room for blacks and Hispanics (and even some whites) with lower scores and weaker records. At the University of California Medical School at Irvine, the blacks and Hispanics who are accepted have lower average medical school admission test scores than the Vietnamese applicants who are rejected. It would be hard to defend either of these policies against the charge that it is both unfair and academically debilitating.
But does the effort to eliminate such distortions also justify an absolute prohibition against efforts of the police chief of Los Angeles (or Detroit or Chicago) to seek out and promote qualified minority officers to diversify their departments? Why should a school system, seeking more effective models, not give some margin of preference to teacher candidates from underrepresented minority groups? If such private firms as the Bank of America or Nynex regard it as good business practice to seek out minorities to work in ethnically diverse markets and communities, why shouldn t the state Department of Motor Vehicles or the city zoning board do so for the same reasons?
There s no end of questions. Are we prepared to accept the larger effects of an absolute prohibition on racial preferences in all public-sector activities? Would we create an even larger playpen for lawyers and consultants to file reverse discrimination suits on the grounds that some practices were not truly color-blind? How, absent a court order, could any employer voluntarily mitigate the effects of past discrimination? Would it be better for the federal government (a) to encourage its contractors to take reasonable steps to diversify their workforces; (b) to adopt a fiercely neutral position; or (c) to prohibit its contractors from in any way noticing gender and ethnicity?
So far, however, instead of asking such questions, the parties in this debate liberals and Democrats in thrall to their minority constituencies, Republicans exploiting the liberals panic are usually talking past the central issue. To what extent should merit be compromised for the sake of inclusion? the defenders of race-based affirmative action insist that no such preferences are ever given to unqualified people that the choice is only made among the qualified and that if that Principle is violated, somebody or something, Probably the courts, will crack down in righteous remedy. They are also quick to remind critics of race preferences correctly, for the most part  that such practices were and still are used to benefit WASP legacies in the Ivy League and other selective colleges long before they were ever applied in favor
of blacks and Hispanics. (What is not said is that the losers in both cases tend to be the same kinds of people: Jews and Asians.)
But what s the meaning of qualified? Some preferences clearly favor the less qualified. Under current law, contractors may win awards despite relatively high bids simply because they are black or Hispanic. In the ordinary sense, they are not as  qualified  as and cost the taxpayers more than lower (white) bidders passed over. But in trying to predict who will make a good cop or a good truck driver for the road crew, is there really any significant difference between the top three scores on the average civil service exam or perhaps even among the top ten? To what extent, indeed, are some affirmative action programs merely attempts to avert attacks on conventional hiring practices or university admission policies that are themselves based on shaky criteria and which, in any case, have never been fully disclosed, much less debated? The critics of affirmative action may have wildly exaggerated ideas of how much merit criteria are stretched in the cause of diversity. The defenders of race preferences may exaggerate how often relatives of union members get breaks in applying to apprenticeship programs, or how many alumni children get preferences in admission to Harvard or Princeton, but so far those institutions are not going out of their way to clarify what they do.
Shaky from the Start
The foundations were always shaky. From the earliest presidential orders of the 1960s Kennedy s, Johnson s, Nixon s calling on federal agencies and contractors to use  affirmative action  to eliminate discriminatory racial practices, to the introduction of goals and timetables in industry training and hiring, to the Reagan-era attempt, largely unsuccessful, to dismantle affirm - Son the country was always   and uncomfortable about formal racial even when invoked for the most nob e P^P^5' This after all, was what the whole civil nghts fig about, what the movement had -d m teach the country, and what for the mo partdespi.e continuing subrle and^omeumes
oU discriminationi^^
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9. UNDERSTANDING CULTURAL PLURALISM that discrimination. In 1965, the year of the great triumphs of the civil rights movement, it made sense to argue, as Lyndon Johnson did, that you do not take a person who has been hobbled by chains, liberate him, bring him up to the starting line  and then tell him  you are free to compete with all the others.  But the consensus for preferences was always tentative. In Bakke, where the Court sanctioned the use of race as one  plus factor  among many extra-academic characteristics (musical or artistic or athletic talent, geographic background, unusual experiences, public service) that might be considered in university admissions Justice Powell called it  the Harvard plan" Justice Blackmun spoke of the need for a period of  transitional inequality.  Within  a decade at most,  he hoped, the need would disappear.  Then persons will be regarded as persons and discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us. 
But that was 1978, and in the meantime almost precisely the opposite has happened. Race preferences, justified as a choice among equally qualified candidates, have been institutionalized and have grown to the point where the University of Texas Law School argues that if it did not use two sets of criteria in admissions there would be virtually no blacks or Hispanics at all, and where the average SAT scores for preferred minority groups at universities like Berkeley are now between 200 and 250 points lower than they are for whites and Asians. (It s between 150 and 200 points elsewhere in the University of California system.) Yet even that was not sufficient for the California legislature, then controlled by Democrats, which took note of the unsurprising fact that UC s minority graduation rates were significandy lower than those of whites and Asians and in 1991 quiedy approved an  education equity act  to put fiscal and administrative pressure on the state s universities not just to admit students in the ethnic proportions in which they were graduating from the state s high schools, but to graduate them from college in the same proportions. Only Pete Wilson s veto kept the bill from becoming law. (It was that bill, incidentally, that prompted Glynn Custred and Thomas Wood, the two conservative academics who wrote CCRI, to begin work on the initiative.)
Elsewhere as well, inches have become yards. Outreach in contracting has turned to tax breaks and set asides for women and minority-owned businesses, even when the owners are themselves multimillionaires, and
(increasingly) into a scandalous use of ownerships by white- or male-controlled ei es. Pressure on businesses from equal opp bureaucrats wielding the club of rigid d impact standards has pushed  goals and bles  toward de facto quotas. (In one c Equal Employment Opportunity Commissi a Chicago company that employed only bls Hispanics, charging that it did not have blacks.) The guarantee of voting rights ha racially gerrymandered districts and Rep control of most Southern congressional tions. In the process, what had been an i understanding to pursue a high moral o through a combination of stringent rules discrimination and marginal race preferei evolved into a system of quasi-entitleme rigid legal impositions governed by a c structure of quietly enacted law, appella decisions, civil service rules, university anc ate school admissions practices, set-aside; goals, and EEOC formulas managed by a counselors, contract compliance auditors,   trainers, affirmative action officers, expert parate impact studies, and layer upon lawyers a huge panoply of law, regulati administrative practice affecting virtually e' tor of the nation s life.
Rising Up Angry
It s hardly surprising that there s growii about this unsightly landscape of entitlem< demands. Working-class Americans and many others face tightening economic pr Talk radio and other new media now le attitudes that were regarded as offensivi unspeakable, not so long ago.
Yet economic fears and the angry voice radio are hardly the whole explanation, now thirty years beyond the searing consc of what things were like before the Civil Ri and the Voting Rights Act, even among the ty of black people. There is much dispul who has gained from race preferences, bu little doubt that where the original argur affirmative action rested in passionately * tionist demands for equal justice, its conse< especially on university campuses, ha1 increasingly manifest in segregated progra their own criteria, shape-up courses for bk Latinos,  theme  housing, student-adnh speech codes enforcing political correctn the threat of suspension, even separate grj exercises plus the long train of racial ten; comes with them. The moral case that hac
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47. So You Want to be Color-Blind
with  We Shall Overcome  and Martin Luther King seems to be ending with gangsta rap, Ice-T, melanism, Louis Farrakhan, and Khalid Muhammad. It is hard to defend affirmative action for an in-your-face separatism that rejects the western values that underlie and represent the only justification for the whole effort.
But if there are moral problems, there are practical ones as well. The proliferating list of protected groups blacks, Latinos, women (in some circumstances), Asians (in others), the handicapped (plus veterans and legacies) makes the future of group preferences increasingly dubious. It was almost inevitable that CCRI, which sparked our current affirmative action fight, would arise in the nation s most heterogeneous state. California s multicultural population makes it increasingly difficult to draw legitimate distinctions between who s to be favored and who is not, or even to make reasonable decisions, as the C