Republicans and quotas: debate - affirmative action

Is the current quota system the making of conservative Republicans? And what can be done now to dismantle it?

IT IS taken for granted that Republicans are insensitive to the plight of racial minorities. For example, in his 1995 book, Nixon's Piano, historian Kenneth O'Reilly condemns Richard Nixon for orchestrating an image as "the white man's champion against the special pleadings and privileges of the blacks."

In actual fact, the hardened system of racial quotas under which Americans live is almost entirely the work of white male conservative Republicans.

It was President Nixon's secretary and undersecretary of labor, George Shultz and Laurence Silberman, who gave us the first racial quotas in 1969 with the Philadelphia Plan, which required quotas in federal contracting. It was Nixon's newly appointed chief justice, Warren Burger, who put the Court's imprimatur on the "disparate impact" standard that redefined discrimination from an intentional act to the absence of proportionate racial representation. Burger's 1971 Griggs v. Duke Power ruling gave the Equal Employment Opportunity Commission the legal grounds for its class-action lawsuits that forced racial quotas on private business.

Once the quota regime had been set in place by the Nixon Administration, subsequent Republican Administrations expanded it into every aspect of life. The assistant attorneys general for civil rights under Presidents Reagan and Bush, William Bradford Reynolds and John Dunne, used the Voting Rights Act to end local self-rule by imposing supermajorities on city councils and cumulative voting in county-council elections, as well as racially gerrymandered legislative and judicial districts.

Even farther reaching was Reynolds's participation in the assault on Yonkers, New York, for allegedly engaging in racism by placing public-housing projects in low-cost areas. In fact, when these projects were built, the original tenants were white. One hallmark of conservative jurisprudence is respect for the separation of powers. Judges are not supposed to legislate, and they most certainly do not have the power to raise taxes. Yet Reynolds and his team of lawyers, including Clint Bolick and Mark Disler, supported Judge Leonard Sand's order that the city be riddled with housing projects, requiring a 30 per cent tax increase and hurting property values throughout the city. While Judge Sand ground down Yonkers's constitutional rights and made a mockery of the separation of powers, Reynolds shielded him with absurd rhetoric branding Yonkers as "every bit as offensive as George Wallace standing in the schoolhouse door."

The feebleness of Republican opposition to racial quotas -- which are unambiguously unconstitutional as well as illegal under the 1964 Civil Rights Act -- permeates two new books by veterans of the Reagan Justice Department, Bolick's The Affirmative Action Fraud, published by the Cato Institute, and Terry Eastland's Ending Affirmative Action: The Case for Colorblind Justice, published by Basic Books. Both authors call for color-blind law and recognize that race and gender quotas contravene equality before the law. But Bolick undercuts his argument by accepting class-based preferences as an alternative. As he stated on CNN's Both Sides with Jesse Jackson on March 17, he sees nothing wrong with giving preferences to "socially and economically disadvantaged individuals." He told Jackson: "If you want to help disadvantaged people, do it on that basis, don't give advantage on the basis of color or gender. It's not fair." He doesn't explain why he thinks class-based privileges do not contravene equality before the law.

Moreover, Bolick accepts the disparate-impact definition of discrimination, while attempting to argue against the quotas based on it. Like Chief Justice Burger in Griggs, and like George Bush's White House Counsel, C. Boyden Gray, Bolick mistakenly thinks that discrimination can be defined as the absence of proportionate representation in the workforce without that definition leading to quotas as the remedy. This leaves Bolick mired in unresolvable contradictions. He concedes that "the use of statistics is an accepted means of demonstrating a covert intent to discriminate," and in testimony before the California State Assembly's Judiciary Committee he said: "No one I know of is suggesting any change in the anti-discrimination arsenal . . . the entire adverse-impact doctrine where you challenge job practices that produce disproportionate results is an important part of anti-discrimination law." This is having your cake and eating it too.

Eastland's book, meanwhile, argues against quotas on the grounds that blacks are stigmatized by them. In the first place, this argument implies that quotas would be acceptable if they benefited blacks. In the second place, it is historically false. The aristocracy was elevated by its legal privileges, not stigmatized by them. Moreover, only conservative Republicans make this argument. Blacks themselves deny it, as do liberal Democrats, and organized minority groups are doing everything than can to defend their affirmative-action preferences. Obviously, they don't feel stigmatized by their privileged legal standing.