May 01, 1997
Racial preference policies are a direct assault against Liberalism in that they resurrect the notion that society should distribute benefits and burdens based on one's status. Racial preferences offend basic notions of fairness and divide society along racial lines. When the nation adopted the Civil War Amendments and anti-discrimination laws, it struck a blow against a race-based caste system. These constitutional amendments and anti-discrimination statutes stand for the proposition that the State cannot sort its citizens by race and then distribute benefits to one racial group at the expense of another. The civil rights establishment's promotion of racial preferences has had a corrosive effect upon the very ideals that made the civil rights revolution possible. Civil rights advocates have encouraged double standards in college admissions, helped devise federal regulations that bribe or in other ways coerce companies to hire minority employees or use minority firms, and demanded that states draw electoral boundaries so as to maximize the number of black elected officials.
The Supreme Court has steadily reigned in federal and state racial preference policies. If enacted by Congress, the Equal Opportunity Act will prohibit the federal government from distributing benefits and burdens on the basis of race. The citizens of California amended their Constitution so that the state government would be prohibited from using racial preferences. Prior to the passage of California's Proposition 209, the Board of Regents in California issued a resolution banning the use of racial and ethic preferences in the admissions process. Citizens in several states, either through their state legislators or the initiative process, are taking steps to end the use of racial preferences. The origins of this sea change can be found in the Reagan Administration. Prior to the Reagan Administration, no administration had ever mounted a sustained campaign against the use of racial preferences.
In Right Turn: William Bradford Reynolds, The Reagan Administration, and Black Civil Rights (Transaction Publishers), Raymond Wolters provides an insider's view of the Civil Right Division of the Justice Department under William Bradford Reynolds. As assistant attorney general for the Civil Rights Division, Reynolds formulated many of the legal strategies that were used to combat those who used anti-discrimination laws as the vehicle for constructing an elaborate racial spoils system.
Wolters' lucid account of the battles between traditional civil rights organizations and the Civil Rights Division under Reynolds reveals that the conflict resulted from their divergent and contradictory world views, not racial animus. Reynolds was well aware of the lingering effects of slavery and invidious discrimination. However, he did not believe that it was legal or proper to implement policies that compensate blacks, as a group, at the expense of whites. Reynolds believed that the Civil War Amendments and anti-discrimination laws were intended to protect the rights of individuals, not remedy historical wrongs inflicted upon racial and ethnic minorities. Traditional civil rights organizations, on the other hand, believed that statistical disparities between blacks and whites in the areas of labor participation rates, test scores, incarceration rates, and poverty rates are the lingering effects of slavery and invidious discrimination, and that the State should implement policies that will place blacks, as a group, in the position that they would have occupied were it not for slavery and other forms of invidious discrimination. These conflicting world views manifested themselves in courtrooms around the country. Reynolds intervened in many cases where the parties sought to impose racial preferences as a remedy in the absence of any evidence of intentional discrimination.
The book brings the doctrinal divisions within the Reagan Administration into sharp relief. Wolters shows that Reynolds' battles were waged on at least two fronts. In addition to facing off with civil rights organizations, Reynolds had to fend off other executive agencies that did not share the Administration's view on civil rights enforcement. In 1981, the City of New Orleans entered into a consent agreement that required the city to promote one black police officer for every white officer until black officers made up 50% of the officers at every rank. The trial court rejected this naked racial quota. The Fifth Circuit overruled the trial court judge. Reynolds requested that the Fifth Circuit en banc review the case. In response to a brief submitted by Reynolds' Civil Rights Division, the Equal Employment Opportunity Commission prepared a brief that criticized Reynolds' legal reasoning. The U.S. Civil Rights Commission not only supported the EEOC's criticism of Reynolds's legal reasoning, it also urged President Reagan to side with the EEOC.
Ultimately, the chairman of the EEOC, Clarence Thomas, reshaped the standards the EEOC used for a finding of discrimination. Under Thomas, the EEOC examined individual cases, rather than rely on statistics that showed disparities between racial groups. Several members of the Civil Rights Commission supported views that were at odds with the Administration's. Some members supported forced busing and proportional representation. To gain compliance from the Civil Rights Commission, the Administration had to replace several commissioners who refused to support its position on the use of quotas and racial preferences.
All too often supporters of preference policies will question the motives and intentions of critics of preference policies. The book shows that the Reagan Administration's opposition to preference polices was motivated, in large part, by the principled belief that racial neutrality was the cornerstone of the Civil Rights Act of 1964, the Voting Rights Act of 1965 and, arguably, the Civil War Amendments. The book's primary shortcoming is its failure to explore the charge that Reynolds permitted the use of preferences in the area of voting rights for partisan reasons. Wolters fails to answer key questions. Did Reynolds promote racial gerrymandering beyond that which was required by law? If so, were his actions motivated by politics?
The civil rights establishment argues that justice demands that the State use racial preferences to undo the effects of slavery and invidious discrimination. The Constitution guarantees procedural justice, not substantial justice. The civil rights establishment's quest for cosmic justice has adversely affected our legal standards of proof, and divided citizens along racial lines. Right Turn illustrates how the Reagan Administration in general and Reynolds in particular waged a principled battle to restrict the scope of civil rights laws so that they rest comfortably within our constitutional framework.
Gerald A. Reynolds, a lawyer, is president of the Center for New Black Leadership in Washington, D.C.