Another Look at Affirmative Action

by Robert A. Destro

ow that Supreme Court decisions have effectively ruled out all but the most carefully justified affirmative action programs based on race, it's time to put aside emotions and take a look at what "mobility strategies" are meant to achieve.

Affirmative action is one such strategy. Its ultimate goal is to foster the assimilation of "minorities" - however defined - into the mainstream and upper reaches of society's most important institutions: government, business, education and culture. To see why it is under attack, we need ask only two questions: 1) "Who should pay the costs associated with the social, economic, and cultural assimilation of minorities?" and 2) "Why?"

The costs of assimilation and social mobility are enormous for any minority group. Generations of Americans of all races and ethnicities have invested their most valuable assets - their labor, religions, cultures and money - in a wide variety of mobility strategies, all in the hope that their families would "make it" in a society that was uncaring at best, and hostile at worst.

Race or nationality-based affirmative action is thus one of many possible strategies. But there is a critical difference. The mobility strategies used by communities of African Americans, Chinese, Irish, Italians, and Eastern European Jews were home-grown responses of these communities to discrimination and economic need. Race-based affirmative action was designed by the federal government to solve a political and moral problem of its own making.

When government uses race or nationality as a qualification for a benefit, it imposes an "unfunded mandate" on those who do not fit its criteria for special protection. Generations of African Americans were forced by the federal government to bear the financial, human and spiritual costs of its segregation and racial discrimination policies. When the law changed, the government couldn't just walk away from the mess it had created and leave the black community holding the bag. Someone would have to pay the assimilation costs.

There were only three choices: 1) the costs could be borne by the black community itself; 2) the government could enact and enforce policies that would encourage the growth and development of human and tangible capital in the communities ravaged by its policies; or 3) the costs could be hidden by imposing them on individuals of other races or nationalities.

Rather than admit its own responsibility, the federal government chose to "remedy" racist policies by pointing the finger at "whites." It was an amazing transformation. The same government that had once considered Italians, Greeks, Poles, Jews and other immigrants from Southern and Eastern Europe to be racially inferior to persons of "Nordic" origin now considered them part of the white "oppressor" class. The nativism, racism, anti-Catholicism and anti-Semitism that was so much a part of their lives and experience was simply irrelevant. The bills had come due, and their government expected them, as always, "to go along quietly."

But they are quiet no more. All ethnic and racial groups have now felt the sting of "official" racial stereotyping and the injustice that occurs when a corrupt and ineptly managed government puts a premium on physical appearance. We know that "diversity" has no fixed meaning and that the dream of reshaping society and its institutions requires lots of bureaucracy, money, and power. This is why Americans of all races want race-based affirmative action stopped. And California is leading the way.

But where are they leading us? That is up to our leaders. To the extent that they paint a picture of racial division, hatred, and abandonment, that is precisely what we shall have. If they remind us that we remain, for all our differences, members of the same human family with far more in common than that which divides us, we might begin to take some cold comfort in the realization that most of the seemingly intractable problems faced by today's ethnic and racial minorities are neither new nor unique.

Though each ethnic and racial group has its own history and perspective on the problems it faces, discrimination in employment and housing, inadequate education, slow or stagnant economic advancement, and little social mobility are not isolated occurrences. They are social problems. To solve them, we will need to focus on what we need to do together, not that which sets us apart.

It is time to focus on problem-solving, rather than race. We must look seriously at the mobility and antidiscrimination strategies employed by various religious, ethnic and racial groups as vehicles to overcome or avoid obstacles placed in their way. We must recognize that real "affirmative action" programs would adapt, and build upon, the strategies of those who have succeeded, even a little, despite a legacy of discrimination. There are many such "success" stories. We will not be willing to listen to them if we perceive our neighbors are rivals in a zero-sum game.

Our differences can be a source of strength. The question on the table is not whether we should have affirmative action. The question should be: What kind should we have?

Robert Destro is an associate professor at The Catholic University of America's Columbus School of Law. He teaches courses in constitutional law, the First Amendment, civil rights, and legal ethics. He is a former member of the United States Commission on Civil Rights.

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Revised: 27 October 1997