Classifying by Raceby Paul E. Peterson
The contemporary debate over racial classification has been dominated by fringe voices in American society. Cries from the right say history should be abrogated and public policy made color-blind, while zealots of the left insist that all customs, language, institutions, and practices are racially tinged and that only aggressive, color-conscious programs can reverse the course of American history. The essays in this volume, however, recognize that racial classification is an issue that cuts too deep and poses too many constitutional questions to be resolved by slogans of either the right or the left.The contributors to this volume are James Alt, Kenneth Benoit, Henry Brady, John Bruce, Rodolfo O. de la Garza, Andrew Gelman, Lani Guinier, Fredrick C. Harris, Gary King, Robert C. Lieberman, David Ian Lublin, David Metz, Paul E. Peterson, Kay Lehman Schlozman, Kenneth Shepsle, Theda Skocpol, Katherine Tate, Richard Valelly, Sidney Verba, and Margaret Weir.
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Classifying by Race
By Paul E. Peterson
PRINCETON UNIVERSITY PRESSCopyright © 1995 Princeton University Press
All rights reserved.
A Politically Correct Solution to Racial Classification
PAUL E. PETERSON
Whether or not to classify by race is a political, not a moral or ethical, question. Put more exactly, the politically correct answer in a pluralist democracy is also likely to be ethically correct. Those who first attempt to work out a moral position and then devise ways of imposing their answers on their fellow citizens are unlikely to have discerned the correct moral position in the first place. Paradoxically, those who first attempt to find a politically satisfactory resolution to racial classification and only then place it within a moral or legal framework are the more likely to have found an ethically satisfying answer.
"Politically correct" has acquired a derogatory connotation in contemporary social discourse. But if one adheres to its grammatically correct meaning, then one can say that on matters of race and ethnicity one should, indeed, be politically correct. Those on the political right who relentlessly charge their opponents with political correctness are unlikely to agree with the proposition I am advancing. They have recently discovered that classifying by race is contrary to the equal protection clause of the Fourteenth Amendment, conveniently ignoring the fact that in the past many conservatives defended the constitutionality of racial classifications.
The proposition I am advancing may not necessarily appeal to everyone on the political left either. Many liberals have insisted that classifying by race is essential if past patterns of discrimination are to be reversed—despite the fact that liberals have in the past rejected any and all classifications based on race. As Justice John M. Harlan said in his famous dissent in Plessy v. Ferguson, the Constitution is color-blind.
The Historical Case for Racial Classification
Both conservatives and liberals make compelling arguments for their newly acquired ethical positions. Conservatives point out that classifying individuals by race introduces a suspect category into public policy. If used as a criterion for allocating educational and occupational opportunities, it confers advantages on members of some racial groups to the disadvantage of members of others. It creates a suspicion that individuals in the advantaged group have acquired their position for reasons other than their individual merit. In so doing, it perpetuates racial antagonisms as well as feelings of racial superiority and inferiority. In the end, racial classification is self-defeating. If it is difficult to fire minorities, they will not be hired in the first place.
To these normative arguments, liberals have an equally powerful reply. Racially blind public policies are a myth, they say. The Constitution is not color-blind: it permitted the slave trade; it counted black slaves as only three-fifths of a person; it gave the white population from slave states disproportionate representation in the Senate. Though a Civil War ended slavery, the country allowed racial segregation to continue virtually unabated for over a century after the Emancipation Proclamation was issued. Racism permeates institutions and practices so thoroughly that the only way discrimination can be alleviated is through explicitly race-conscious policies designed to reverse past practices. The equal protection clause of the Fourteenth Amendment does not preclude classification by race. The clause requires only that race classifications not harm those minorities against whom discrimination has historically been practiced.
The essays in the second part of this volume substantiate and elaborate many of these claims. Richard Valelly's essay, "National Parties and Racial Disenfranchisement," tells us that in the period after the Civil War, African Americans contested southern efforts to reconstruct the antebellum world through segregation and disenfranchisement. But as their Republican allies in the North abandoned Reconstruction, the elaboration of color lines accelerated. Theda Skocpol's analysis, "African Americans in U.S. Social Policy," describes the extent to which social policy has been shaped by racial considerations. Robert Lieberman extends this argument in his essay, "Race and the Organization of Welfare Policy." He shows the way in which even the Social Security Act, the essential core of New Deal liberalism, was designed in ways that would safeguard existing patterns of racial discrimination. By excluding agricultural and domestic laborers, the legislation denied Social Security to most black workers. By leaving the implementation of federal welfare policy to state and local governments, state and local officials were given opportunities to classify by race (which they were most sincerely willing to do).
Some may dismiss these essays as reports from the past, historic examples of racial classification utterly removed from contemporary political and social life. I learned about such predispositions when an influential policy analyst mentioned to me one day that he opposed using historical approaches to the study of public policy. He felt such studies dredged up the dead hand of the past and ignored all that has since been done in recent years to bring past patterns of racial discrimination to an end. But Margaret Weir's comparative analysis, "The Politics of Racial Isolation in Europe and America," suggests that the past is not easily exorcised. She shows that the geography of American cities, when viewed in comparative perspective, has been defined as much by racial conflict as by technological innovation. As late as 1980, 70 percent of the black or white population would have had to have moved in order to eliminate racial segregation in the residential neighborhoods of our metropolitan areas. When public schools are as racially segregated in 1995 as they were in 1972, one can hardly conclude that the Brown decision brought an end to discriminatory practices rooted in two hundred years of slavery.
Lincoln's Politically Correct Solution
The historic and contemporary patterns of racial segregation and classification cannot be denied. But the mere citation of past discriminatory practices does not by itself justify any and all policies designed to rectify them. Progress in race relations cannot be realized unless forward steps are politically viable. The best way out of a racial dilemma does not require a fixed course without regard to wind or wave but a route that allows the political process to sort alternatives until the country finds policies with which it can live.
Abraham Lincoln was the first great American statesman to articulate a politically derived ethic for resolving racial conflict. Lincoln, of course, had to address the far more difficult question of slavery, which he knew to be fundamentally evil. Yet as certain of slavery's inherent immorality as Lincoln was, his political ethic differed from that of the abolitionists. Lincoln opposed only the extension of slavery into the federal territories; he did not oppose its continuation within the slave states for the foreseeable future, nor did he publicly claim that blacks and whites were social equals.
Lincoln tolerated slavery within its existing boundaries because of his fundamental commitment to preserving the experiment in liberty and democracy unfolding within the United States. To preserve the Union, slavery could not yet be abolished. To restore the Union, a Civil War was initiated without calling it a war against slavery. To win the war, slaves were eventually emancipated in the rebellious parts of the Union, though not within those states loyal to the Union. It is easy to condemn these examples of Lincoln's politically correct toleration of what he perceived to be a fundamental evil. But Lincoln's commitment to the Union was not simply a desire to keep intact the compact among the several states. Lincoln understood the Union to be a country dedicated to the proposition that all men are created equal, a country with a government "of the people, by the people, for the people."
This Union had to continue to be one that was worth preserving, and, therefore, any new actions that it took, any additions that it made to its territory, had to enhance the cause of freedom, not of slavery. If slavery could not yet be abolished, it certainly could not be extended into the Mexican territories. If such an extension could be prohibited, than the United States would eventually find a solution to the slave question.
If Lincoln's politically correct answer to the question of racial enslavement is morally acceptable, then perhaps one can also find a politically correct answer to racial classification. If the United States was by 1860 a democratic experiment worth preserving, then today it is worth keeping secure the much further progress the country has since made toward realizing political unity out of people from diverse linguistic, ethnic, and racial traditions. In his analysis, "The Effects of Ethnicity on Political Culture," Rodolfo O. de la Garza provides ample evidence that democratic values are deeply entrenched and widely shared. His findings help make credible the belief that racial classification will some day disappear, provided the democratic experiment is preserved. In the meantime, it is necessary to search for ambiguous solutions not unlike those Lincoln constructed.
The Bakke Case
Politically correct solutions are likely to be imprecise, inconsistent, pragmatic, logically indefensible. That does not make them any less ethical. The reasoning of Justice Lewis Powell in the 1978 Bakke case is a relevant case in point.
Allen Bakke, a Norwegian American, sued for admission to the medical school of the University of California at Davis. He had been denied a place among the eighty-four positions open to all applicants, despite the fact that his grade point average, his aptitude test, and his overall evaluation scores exceeded those of the average admitted applicant. Bakke's scores exceeded by an even larger amount the average of the sixteen students admitted under a special program reserved for economically or educationally disadvantaged minority students. The Supreme Court allowed Bakke to enter Davis, and he eventually became a medical doctor.
Powell cast the decisive vote in favor of Bakke on the grounds that quotas were unconstitutional unless used to rectify the defendant's past discriminatory practices. Since Davis had never been found to have discriminated against minorities, its use of racial and ethnic distinctions was constitutionally impermissible. Powell went on to say that even though the quotas at Davis were unconstitutional, Harvard's diversity program (which admitted students only after taking into account a variety of personal characteristics, including race and ethnicity) did not violate the equal protection clause. A university had a legitimate interest in having a diverse group of students, and classifications that insured such diversity were reasonable as long as specific racial quotas were not established.
Every single one of Powell's colleagues disagreed with the position he had taken. Though four justices voted with Powell, they did so for different reasons. In concurring opinions, they said Bakke should be admitted because racial quotas, diversity programs, and other distinctions based on race were in violation of the Civil Rights Act of 1964, unless the racial category was needed to apply a remedy for specific grievances against a particular institution. Distinguishing between quotas and diversity was drawing a distinction without a difference.
Four other justices dissented from the Bakke decision altogether. In their opinion, quotas were constitutionally acceptable because the purpose of "remedying the effects of past societal discrimination is sufficiently important to justify the use of race-conscious admission programs where there is a sound basis for concluding that ... the handicap of past discrimination is impeding access of minorities to Medical School." Justice Harry Blackmun noted that "the difference between the Davis program and the one employed by Harvard is [neither] profound nor constitutionally significant." Indeed, he observed that "the cynical ... may say that under a program such as Harvard's one may accomplish covertly what Davis concedes it does openly."
Blackmun's comments are perceptive. Powell came very close to giving constitutional sanction to public hypocrisy as a policy. He said that one could classify by race as long as no specific numbers were established and racial classifications were not called as such by name. Classifying by race, it seems, was constitutionally acceptable as long as it did not appear as such. But as questionable as Powell's opinion seemed to the other justices, his reasoning has never been explicitly overturned. In 1978 the Supreme Court approved quotas used by a company to overcome past societal discrimination. But the court distinguished the case from Bakke because racial classification was undertaken by a private party, not by the state.
Bakke remains a controlling precedent, in large part because it strikes a balanced position on racial issues that the public seems to support. In 1991 Congress passed and George Bush signed civil rights legislation requiring businesses to take affirmative steps to avoid racial and gender discrimination—but forbidding firms from establishing quotas. When Bill Clinton campaigned in favor of affirmative action but against quotas, he, too, adopted a position as ambiguous—but as politically correct—as the one taken by Powell. The wisdom, if not the logic, of such a policy is presumably related to the fact that white public opinion has supported affirmative action policies—as long as these policies do not involve quotas (see table 1.1).
Stephen Macedo has made the intriguing suggestion that Powell's position may be both substantively coherent and politically correct. He says that inasmuch as laws have educative effects, they should not have a prima facie racial content even when their practical effect is to give minority groups an advantage. To this argument, it may be replied that one cannot fool the public so easily; policies with a disguised racial content have as educative an effect as those with a prima facie racial content—with the additional consequence that citizens are educated to the art of hypocrisy. Despite Macedo's intriguing effort to give coherence to Powell's position, its only defense is its political acceptability.
The Representation Debate
If in the 1980s the question of racial classification was debated in the language of quotas and diversity, in the 1990s the question has come to focus on issues of political representation. Are states legally required to draw the boundaries of congressional and legislative districts in such a way as to insure the election of the maximum feasible number of minority legislators? Or does the intentional creation of racially homogeneous congressional districts constitute a classification by race that violates the equal protection clause?
The logically coherent answers to these questions come from opposite ends of the political spectrum. Those who oppose racial redistricting argue that the use of racial criteria in the creation of congressional districts cannot be tolerated by a color-blind Constitution. As long as the population of each district is essentially the same and as long as boundaries are not intentionally drawn in order to discriminate against minorities, courts should remain aloof from the political thicket. Certainly, the court should not order states to put all other considerations to one side in order to draw districts with the sole purpose of maximizing minority representation in Congress and state legislatures.
Excerpted from Classifying by Race by Paul E. Peterson. Copyright © 1995 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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