The Affirmative Action FRAUD The Affirmative Action FRAUD Can We Restore the American Civil Rights Vision? Clint Bolick INSTITUTE Washington, D.C Copyright © 1996 by the Cato Institute All rights reserved Library of Congress Cataloging-in-Publica ion Data Bolick, Clint The affirmative action fraud : can we restore the American civil rights vision? / Clint Bolick p cm Includes bibliographical references and index ISBN 1-882577-27-2 — ISBN 1-882577-28-0 (pbk.) Civil rights—United States Affirmative action programs— United States I Title JC599.U5B556 1996 323'.0973—dc2O 95-48393 CIP Cover Design by Mark Fondersmith Printed in the United States of America CATO INSTITUTE 1000 Massachusetts Ave., N.W Washington, D.C 20001 To Chip Melior Contents ACKNOWLEDGMENTS ix INTRODUCTION 1 CIVIL RIGHTS CONUNDRUM 11 FIRST PRINCIPLES 23 THE REVISED AGENDA 39 TRICKLE-DOWN CIVIL RIGHTS 51 EDUCATION: SEPARATE AND UNEQUAL 69 POLITICAL APARTHEID 83 BEAN-COUNTERS AND QUOTA GAMES: THE CLINTON CIVIL RIGHTS RECORD 97 THE REPUBLICAN ABDICATION 111 COMMON GROUND 121 EMPOWERMENT 133 INDEX 163 10 Index Abolitionists as civil rights movement, 28-30 in Republican party, 31 Abram, Morris, 45 Academic achievement, 75 Achtenberg, Roberta, 99, 101, 104-5, 106 Acton, John (lord), 25 Adarand Constructors, Inc v Pena (1995), 54, 59, 107 Adverse impact concept flaws of underlying premises, 64-65 in Griggs decision, 55 influenced use of subjective decisionmaking, 55-56 to prove employment discrimination, 54-55 ruling in Wards Cove related to, 57-58 used by EEOC and civil rights activists, 55-56 Affirmative action Court inteφretation of Voting Rights Act, 86-87 estimated cost of compliance, 60 failure of policies of, 60-68 gains resulting from governmentcoerced, 61-62 government agency measurement of, 53 Nixon administration position on, 115 in public policy, 53 race-based, 126 redistributive impact of, 62-63 See also Race-based policies; Racial preferences Aid to Families with Dependent Children (AFDC), 137 Allen v State Board of Elections (1969), 86-87 Amendments to Constitution Ninth, 27-28 Tenth, 27-28 Thirteenth, 31 Fourteenth, 31-33, 59 Fifteenth, 31, 85 American Creed, 35, 123,128-29 An American Dilemma (Myrdal), 35 Armor, David, 76 Bakke decision See Regents of the University of California v Bakke (1978) Barriers to advantage, 20-22 to mobility, 134-35 Berry, Mary Frances, 23-24, 99 Bill of Rights Ninth Amendment, 27-28 Tenth Amendment, 27-28 Blackmun, Harry, 4-46 Black people as conservatives, 116 disadvantages, 20-22 as Republicans, 116 as victims of crime, 135-36 Black power movement, 44 Black separatism, 44 Blackstone, William, 28 Bloch, Farrell, 60, 135-36 Bogen, Josh, 99-100 Bork, Robert H., 41 Brimelow, Peter, 60 Brown, Jim, 19 Brownstein, Ronald, 100 Brown v Board of Education (1954), 9,12, 36, 37, 45, 71-72 Buchanan, Buck, 99-100 Bush, George, 6, 58, 98,112-13 Bush administration accepts civil rights quota bill, 113-15 Justice Department racial gerrymandering, 87 position on Kennedy-Hawkins civil rights bill, 111-13 principles for civil rights bill, 112-13 Businesses, minority-owned costs of and spending for set-asides, 60-61 economic liberty for, 137-39 163 INDEX California Civil Rights Initiative, Campbell, Tom, 112 Canady, Charles, 117 Cantu, Norma, 49, 99, 106 Carmichael, Stokely, 44 Carter, Stephen, Carter administration, 48 Casellas, Gilbert, 98, 100 Changing Course: Civil Rights at the Crossroads (Bolick), City of Richmond v J A Croson Co (1989), 57, 58-59 Civil rights Bush administration violates own principles for, 113-14 Bush principles for legislation related to, 112-13 current state in America, 11-13 defined, 24 government role to protect, 27 history in America, 24 legislation related to school choice programs, 140 NAACP principles of, 34 nullification in Constitution, 28 Paine's definition, 26 proposal for Republicans, 116-17 transformation of concept, 9, 49 Civil Rights Act (1866), 31 Civil Rights Act (1964) economic gains for blacks after, 61-62 employment provisions, 52 sanctioning government power to sustain discrimination, 41-43, 54 Civil Rights Act (1991), 6, 98 Bush administration acceptance of, 113-15 defendants' burden of proof of adverse impact, 58 parameters for engaging in racial preference, 58 Civil rights groups during Carter administration, 48 concern for minority criminals, 135 Justice Department voting rights work with, 87-88 reaction to Wards Cove decision, 112 response to Adarand decision, 59 response to Clinton's civil rights policies, 97 response to Wards Cove decision, 58, 111-12 use of adverse impact concept, 55-56 164 See also Civil rights movement; Civil rights vision, American Civil rights issues 1992 campaign, proposed agenda for, 129-31 Republican position on, 111-15 revised agenda, 46-50 Civil rights movement abolitionists as civil rights advocates, 28-30 advocacy of social reform, 44-45 goals (1960s), 37 modern, 35 new generation and new leaders, 123-24 post-1964 changed goals and philosophy, 40, 43 post-1964 leadership themes, 44-45 Civil rights policy Clinton administration, 101-2 dividing effect of, 121 outcome of, Civil rights revisionism racial differences myth of, 122, 128-31 racism myth of, 122-28 Civil rights vision, American construction on natural rights principles, 8-9, 27-28 defined, 24 King's campaign rooted in, 36-37 in quest for civil rights, 38 themes of, 24-25 Clark, Russell, 75 Clinton, Bill campaign promises related to race issues, on nomination of Deval Patrick, on race issues, 98 Clinton administration appointment of civil rights activists, 98-100 civil rights policies, 8, 97-108 diversity policy, 99-101 position in Piscataway, 108 race-based policies, 7, 107-8 social engineering policy, 101-5 Coleman, Lovida, 13 Committee on Civil Rights, post-World War II, 36, 48 Congressional Black Caucus, 66 Congressional districts race-neutral, 89 INDEX redrawn lines to create majorityblack, 83-85 voting rights policy redistricting, 88-89 See also Racial gerrymandering Constitution, the natural rights principles of, 27 nullification of civil rights, 28-29 See also Bill of Rights Courts advancement of revised civil rights agenda in, 48-49 litigation related to discrimination, 69-70 NAACP litigation in, 34, 36 protection of economic liberty, 138-39 See also Supreme Court decisions Croson See City of Richmond v J A Croson Co Cultural diversity policy (HUD), 101 Cumulative voting concept (Guinier), 91-92 Days, Drew, 48 Dea, Stanley, 51 Declaration of Independence American civil rights vision in, 27 interpretation of M, L King, 37 statement of American Creed in, 128 Department of Education, 106-7 Department of Housing and Urban Development (HUD), 101 Discrimination under Civil Rights Act (1964), 45-46 expansion in legal theories of concept, 54 proposed legislation forbidding government, 124-25 See also Affirmative action; Employment discrimination; Nondiscrimination principle; Quotas; Racial preferences Diversity Clinton administration policy of, 99-101 fostering of, 18 Dole, Robert, 117 Dorn, Edwin, 100-101 Douglass, Frederick, 29-30 Dred Scott v Sandford (1857), 30-31 Drucker, Peter M., 20 Dubois, W E B., 34 Dunne, John, 87 Eagle, Steve, Economic liberty, 137-39 Economic status of blacks relative to whites (1965-75), 61 of blacks relative to whites (post1975), 61-62 The Economist, 124 Education barriers for black people to, 21 discrimination in institutions, 69-70 empowerment through school choice, 139-43 importance in civil rights concept, 70-71 poor quality of, 65 race-based policies, 74-81 separate but equal status, 71-72 spending for academic achievement, 75 See also School choice; School desegregation Electoral line-drawing, 89 See also Race-neutral districting; Racial gerrymandering Employment discrimination post-Criggs adverse impact claim of, pre-Griggs proof of, 54 Employment standards, 55 Empowerment characteristics of initiatives, 142-43 role of, 133-36 through economic liberty, 137-39 through school choice, 139-43 Epstein, Richard, 41, 42 Equal Opportunity Act (proposed 1995), 117 Equal Opportunity Employment Commission (EEOC) Clinton administration appointees, 98-100 discrimination concept expanded by, 54 E H Norton as chairperson, 48, 56 in Nixon administration, 115 use of adverse impact concept, 55-56 Equal protection clause, Fourteenth Amendment, 32-33, 59 Faubus, Orville, 73 Federal Communications Commission (FCC) quotas, 105-6 set-asides, 66 INDEX Fifteenth Amendment, 31, 85 Fourteenth Amendment, 31-33, 59 Fugitive slave law (1850), 30 Ful¡ilove v Kłutznick (1980), 54, 59 Garrison, William Lloyd, 29 Gates, Daryl, Gerrymandering See Racial gerrymandering Gilliam, Dorothy, 97-98 Glazer, Nathan, 46, 47, 72 Good, Donna, 76 Goodling, Bill, 106 Goodman, Ellen, 15 Government role as impartial referee, 125 proposed legislation to forbid discrimination by, 124-25 recommendations for role to protect security, 136 to secure and protect civil rights, 25-27 Graham, Hugh Davis, 115 Gray, C Boyden, 112 Great Society programs, 44 Greenberg, Jack, 72 Griggs v Duke Power Co (1971), 54-55 Guinier, Lani M nomination of, 49, 98 premises of, 89-93 writings of, 7-8, 90-91 Harlan, John (first), 33, 71 Harlan, John (second), 86-87 Harrington, Michael, 43-44 Holder v Hall (1994), 93 Hooks, Benjamin, 112 Hopwood, Cheryl, 69-70 Hughes, Joyce, 18 Humphrey, Hubert H., 42, 52 Hylton, Keith, 18 Hylton, Maria, 18 Igasaki, Paul, 99 Institute for Justice civil rights litigation program, information related to Guinier, role of, 9-10 in school choice controversies, 142-43 Jackson, Jesse, 39 on Aάarand decision, 59 166 on measurement of equality, 46 proposal for three-day protest march, 129 Jackson, Robert, 34-35 Jacob, John, Japanese-Americans, World War II internment, 34-35 Jencks, Christopher, 44 "Jim Crow" era laws, 32 racial purity concept, 16-17 Johnson, Andrew, 31 Johnson, Lyndon B., 43-44, 46, 53 Johnson administration, affirmative action concept, 53 Justice Department Clinton administration Civil Rights Division, 102-5 response to Voting Rights Act amendment (1982), 87-88 role in racial gerrymandering, 87-88 Kemp, Jack, Kennedy, Anthony, 59, 85 Kennedy, John F., 40-41, 43 Kennedy, Roger, 101 Kennedy-Hawkins civil rights bill, 111-13 King, Martin Luther, Jr., 23, 25, 36-38 accusations against white people, 47 assassination of, 43 call for national guaranteed income, 45 on doing a good job, 63 on enforcement of civil rights laws, 40 on equality, 47 on expectations of black people, 44 on goal of civil rights, 128 King, Richard H., 35 Kirkpatrick, Melanie, 18 Konrad, Alison M., 61-62 Korematsu v United States (1944), 34 Krauthammer, Charles, 108 Kull, Andrew, 88 Leadership Conference on Civil Rights, 48 Lewis, John, 48 Lichter, Linda, 129 Lincoln, Abraham, 31 Linnehan, Frank, 61-62 Lipset, Seymour Martin, 21-22, 126 Locke, John, 25 L·sing Ground (Murray), 77 Loury, Glenn, 46, 67 MacDonald, Heather, 106 Macey, Jonathan, 104 Malcolm X, 44 Marshall, Thurgood, 36, 39, 45, 71-72, 113 Maruyama, Warren, 76-77 Matsch, Richard, 75-76 Meredith, James, 73 Metro Broadcasting, Inc v FCC (1990), 54,59 Miller, Paul, 99 Miller v Johnson (1995), 84, 140 Milwaukee Parental Choice program, 12, 140-43 Mitchell, Clarence, 52 Mosely-Braun, Carol, 66 Murray, Charles, 77 Myrdal, Gunnar, 35 National Association for the Advancement of Colored People (NAACP) campaign to abolish state-sanctioned segregation, 71 creation of (1909), 34 legal strategy, 34 Marshall's challenge to segregation, 36 principles of, 34 National Association of Black Social Workers (NABSW), 16-17 National Center for Neighborhood Enterprise, 112 Natural rights defined, 25 incompatibility of slavery with principles of, 28 principles in Constitution, 27 United States founded on principles of, 25-26 Nevels, Mark Anthony, 70 Ninth Amendment, 27-28 Nixon administration, 115 Nondiscrimination principle, 43, 124 Norquist, John, 141 Norton, Eleanor Holmes, 48, 53, 56 O'Connor, Sandra Day, 59, 83 Office of Federal Contract Compliance, 115 Office of Management and Budget (OMB) data collection, 14 Office of Minority Business Enterprise, 115 The Other America (Harrington), 43-44 Paine, Thomas, 23, 26 Parks, Rosa, 36 Patrick, Deval appointment in Clinton administration, 7, 49 as civil rights activist, 97-98 on constitutionality of death penalty, 135 role in Piscataway, 102-3 use of Voting Rights Act, 105 Philadelphia Plan, 115 Phillips, Kevin, 114 Piazza, Thomas, 35, 63, 108, 125-29 Pinzler, Isabelle, 98 Plessy v Ferguson (1896), 32-33, 34, 71, 72 Podberesky, Daniel, 78 Powell, Lewis, 57 Quotas affirmative action as euphemism for, 115 FCC hiring and licensing, 105-6 Nixon administration racial, 115 as outcome of adverse impact concept, 54 by race, 14 removal in Wards Cove decision, 58 school, 11-13, 75-81 Wards Cove decision related to, 58 Race-based policies of affirmative action, 126 Clinton administration civil rights policies, 7-8, 97 conditions for collapse of, 122 Nixon administration, 115 response to, 128 Race-consciousness architects of current regime, 17 Clinton administration, 97-109 laws to remove, 41-43 official, 14-15 167 INDEX present-day, 39-40 See also Racial preferences Race-neutral districting, 89 Race norming forbidden under Civil Rights Act (1991), 58 use of, 56 Racial attitudes demand for reparations, 50 with race-conscious agenda, 18, 63 Racial differences myth, 128-31 Racial gerrymandering Clinton administration defense of, 105 government actions promoting, 87-88 limits in Supreme Court decision, 93 long-term effect of, 88-89 as redistribution force, 89 voting districts created by, 83-85 Racial hatred, Racial issues (Clinton), 98 Racial preferences abuses, 66-67 in affirmative action policies, 126 under Civil Rights Act (1991), 58 Clinton position, 108 expanded regime of, 60 financial aid programs, 78 need for Republicans to take position on,117-18 premises underlying, 52 in selection for jobs, 51 social costs of, 63-65 sources of opposition to, 125-26 use in private industry, 56 Racism continued existence of, 126-27 correlations of specific groups with, 127 goal to use government to eliminate, 40-42 Guinier's premise related to, 91 myth of pervasive, 122-28 Randolph, A Philip, 35 Raspberry, William, 73 Reagan, Ronald, 115-16 Reagan administration, 5, 115 Rees, Matthew, 117 Regents of the University of California v Bakke (1978), 4, 46, 77 Regulation entry-level, 137-38 168 of private actions under civil rights laws, 40-42 Rehnquist, William, 75 Reno, Janet, 99 Reparations, racial, 50 Representation authentic black (Guinier), 91-92 proportionate interest (Guinier), 92 See also Racial gerrymandering Republican party abolitionists in, 31 challenge to, 116 need to expand appeal, 117-18 position on civil rights issues, 111-15 self-portrayal, 116 Rights defined by M L King, Jr., 37 government responsibility to protect, 125 Paine's conception of equality of, 26 See also Civil rights; Natural rights; Voting rights Riley, Richard, 107 Rustin, Bayard, civil rights agenda revision, 44, 45, 46 Scalia, Antonin, 57, 59, 93 Scanlon, Kerry, 98, 102-3 The Scar of Race (Sniderman and Piazza), 35 School choice, 12,139-43 School desegregation after Brmvn decision, 73-74 busing for, 74-75 litigation in Kansas City, 75 response, 74 Schools, private in Wisconsin school choice program, 12, 140-41 Schools, public deficiencies, 77 desegregation of, 73-74 as monopoly, 139-40 need to compete, 141 spending for academic achievement, 75 Segregation argument in Brown against, 71-72 NAACP campaign to abolish statesanctioned, 71 NAACP challenge to, 36 related to Slaughter-House decision (1872), 32 INDEX Set-asides court decisions related to, 54-57 FCC licensing, 105-6 for government contracts, 53-56 for minority-owned businesses, 60 Small Business Administration, 60-61 Shaw v Reno (1993), 83-84, 93 Silberman, Charles, 47 Silberman, Ricky, 5,112 Simon, Paul, 100 Simpson murder trial, 10, 19, 121 Sister Souljah, 6, 98 Slaughłer-House Cases (1872), 32 Slavery abolition in America, incompatible with natural rights principles, 28-29 Lincoln on, 31 Sniderman, Paul M., 35, 63, 108, 125-29 Social costs, race-based affirmative action, 63-65 Social engineering policies, Clinton administration, 101-2 The Souls of Black Folk (DuBois), 34 Sowell, Thomas, 124 Spencer, Leslie, 60 Statistical inference, 65 Steele, Shelby, 6, 14, 21, 52, 64, 115, 118-19 Sumner, Charles, 30 Supreme Court decisions Congressional redistricting, 83-85 establishment of parameters for racial preferences, 58 related to racial gerrymandering, 83-85 related to Voting Rights Act, 86-88 to strike down race-based educational barriers, 71 voting rights, 86-87, 93-95 Swain, Carol, 63-64 Swann v Chariotte-Mecklenberg Board of Education, 73-74 Taney, Roger, 30 Tenth Amendment, 27-28 Thernstrom, Abigail, 7, 85-87 Thirteenth Amendment, 31 Thomas, Clarence, 5, 75, 93-94, 113 Thompson, Tommy, 137, 141 Tien, Chang-Lin, 80 To Secure These Rights (Committee on Civil Rights), 36 The Truly Disadvantaged (Wilson), 66 Truman, Harry, 35-36, 48 The Tyranny of the Majority (Guinier), 90-91 Unfinished Business (Bolick), 5-6 United States v Board of Education of Piscataway, 102, 108 Vargyas, Ellen, 99 Villard, Oswald Garrison, 34 Voters ballot-box choices by race, 19 black, 88, 114-16 Hispanic, 88, 115 low-income, 116 in segregated voting system, 93-95 Voting rights position of Clinton Justice Department, 105 racial classifications, 85 statistical analyses of cases, 87 Supreme Court decision in Allen, 86-87 Voting Rights Act (1965) Congressional amendment (1982), 87 Guinier's proposals to interpret, 91-93 passage, 85-86 questioned utility of, 95 role of courts under, 91 Supreme Court decision in Holder, 93-94 Supreme Court interpretation of, 86-8 Voting rights policy Justice Department use of, 87-88 redistricting, 88-89 Supreme Court examination of, 93 Wallace, George, 73 Wards Cove Packing Co v Atonio (1989), 57-58, 111-12 Warren, Earl, 86 Washington, Booker T., 17-18, 33-34 Washington, James M., 44 Waters, Maxine, Welfare system dependency, 136-37 White, George C , 33 Williams, Annette "Polly," 6, 12 Williams, Patricia, 7, 67 Wilson, William Julius, 6, 66 Wisconsin school choice program, 140-43 169 INDEX Wisdom, John Minor, 88 Woodson, Bob, 6, 112 Wygant v Jackson Board of Education (1986), 4, 56-57 170 Yee, Mary, 76-77 Young, Whitney, 45 About the Author Clint Bolick serves a vice president and director of litigation at the Institute for Justice, which he co-founded in 1991 to engage in constitutional litigation protecting individual liberty and challenging the regulatory welfare state He served from 1988-91 as director of the Landmark Center for Civil Rights He previously served at the Department of Justice and at the Equal Employment Opportunity Commission Cato Institute Founded in 1977, the Cato Institute is a public policy research foundation dedicated to broadening the parameters of policy debate to allow consideration of more options that are consistent with the traditional American principles of limited government, individual liberty, and peace To that end, the Institute strives to achieve greater involvement of the intelligent, concerned lay public in questions of policy and the proper role of government The Institute is named for Cało's Letters, libertarian pamphlets that were widely read in the American Colonies in the early 18th century and played a major role in laying the philosophical foundation for the American Revolution Despite the achievement of the nation's Founders, today virtually no aspect of life is free from government encroachment A pervasive intolerance for individual rights is shown by government's arbitrary intrusions into private economic transactions and its disregard for civil liberties To counter that trend, the Cato Institute undertakes an extensive publications program that addresses the complete spectrum of policy issues Books, monographs, and shorter studies are commissioned to examine the federal budget, Social Security, regulation, military spending, international trade, and myriad other issues Major policy conferences are held throughout the year, from which papers are published thrice yearly in the Cato Journal The Institute also pub lishes the quarterly magazine Regulation In order to maintain its independence, the Cato Institute accepts no government funding Contributions are received from foundations, corporations, and individuals, and other revenue is generated from the sale of publications The Institute is a nonprofit, tax-exempt, educational foundation under Section 501 (c)3 of the Internal Reve nue Code CATO INSTITUTE 1000 Massachusetts Ave., N.W Washington, D.C 20001 $10.95 "Clint Bolick makes an excellent case for the downfall of the civil rights establishment because of its preoccupation with group entitlements rather than individual justice Bolick is absolutely on target when he says that the future of racial equality in America will come from a return to our principles of individual liberty and equal opportunity All those interested in America's future should sit up and take notice of this book and its common-sense, free-enterprise solutions to the problems of economic inequalities faced by different groups in our society." —Linda Chavez President, Center for Equal Opportunity and former Director, U.S Commission on Civil Rights (1983-85) "Clint Bolick believes that democracy is the answer to inequality in our society This book brilliantly makes the point that to be against discriminatory affirmative action is not to be against racial reform It is, instead, to take a positive stand for democratic principles and minority development Bolick gives the clearest answer yet to that ubiquitous question: after affirmative action, what next?" —Shelby Steele Author, The Content of Their Character " A central task confronting our democracy is to establish a legal order in which all citizens enjoy the equal protection of the laws It should be clear by now to anyone who looks at the facts that the entrenched use of racial preferences in education, employment, and government contracting has become inconsistent with this goal Clint Bolick makes this case with impressive force While I may differ with him on some particulars, the overall thrust of his argument is compelling, and deserves a wide readership." —Glenn Loury Author, One by One from the Inside Out ISBN 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The Affirmative Action FRAUD The Affirmative Action FRAUD Can We Restore the American Civil Rights Vision? Clint Bolick INSTITUTE Washington, D.C Copyright © 1996 by the Cato Institute All rights. .. Library of Congress Cataloging-in-Publica ion Data Bolick, Clint The affirmative action fraud : can we restore the American civil rights vision? / Clint Bolick p cm Includes bibliographical references... just exactly what we' ve suspected all along: They don't give a rip about civil rights. 15 THE AFFIRMATIVE ACTION FRAUD Despite the best efforts of President Clinton and the civil rights establishment