Separation of Race and State
for The Wall Street Journal (September12, 1995)
By Dinesh D'Souza

Before adopting a course that will determine the future of race relations into the 21st century, Americans must step back from the sound and fury of the affirmative action issue long enough to consider the four basic policy options for dealing with the continuing problem of racial discrimination.

The first approach is to preserve racial preferences, based on the logic of proportional representation. This is the Clinton administration’s preferred route, and despite recent Supreme Court decisions it remains the regnant practice. Absent discrimination, our laws expect minorities to fan out into the work force at roughly their proportion in the population. Companies that fail to maintain the proper ethnic breakdown of workers are guilty until proven innocent: The Civil Rights Act of 1991 places on employers the burden of proving they are not discriminating.

But over the past generation the basic flaw in proportional representation has become apparent: Merit, no less than the old racism, produces inequality- inequality between individuals and among groups. There is no reason to expect that equality of rights for individuals necessarily translates into equality of results for groups. If different groups of runners hit the finishing tape at different times, it does not follow that the race has been rigged. Our current civil rights laws, therefore, are built on an intellectual foundation of quicksand.

In addition, proportional representation fails the test of social justice. Columnist Michael Kinsley argues that race is a “rough and ready shorthand for disadvantage,” but that does not hold true anymore. The African-American community has bifurcated into a middle-class and an underclass.

There is no justification for giving a university admissions preference to the black government official’s son who attends a private school in Washington over the daughter of a white Appalachian coal miner or a Vietnamese refugee. Moreover, proportional representation unfairly subsidizes the children of new immigrants, who have played no part in American history, at the expense of the sons and daughters of native-born citizens.

A Matter of Unfairness

Proportional representation also erodes the principle of equality of treatment under the law, the only unifying principle for a multiracial society. People can live with inequality of results if they are assured equality of rights, just as we can endure losing a contest in which all competitors played by the same rules. Majorities, no less than minorities, need the assurance that they are being treated fairly; otherwise they are sure to mobilize through democratic channels to affirm their interests.

Finally, proportional representation ensures an unceasing balkanization and racialization of American society. At least the old discrimination existed anomalously with the American creed; the new discrimination, enshrined into law, corrupts the nation’s institutions and makes them purveyors of injustice.

The only prop sustaining affirmative action today is the liberal conviction that the social outcomes produced by merit alone would prove painful and humiliating for blacks. For example, studies have shown that if the University of California at Berkeley selected students solely based on grades and test scores, the percentage of blacks would fall to between 1% and 2%. Similarly, blacks would be scarce in some professions. Proportional representation will end only when we have the courage to say that we are willing to live with these outcomes until blacks are able to raise their own standards to compete at the highest levels.

A second option, favored by some scholars, is to abolish racial preferences for all groups except African-Americans. Eugene Genovese, for example, argues that blacks have faced a unique history in this country and should be permitted to identify themselves as culturally black and benefit from a carefully selected range of preferences.

This approach has the benefit of acknowledging the absurdity of preferring newcomers from Mexico City over locals from Kansas City. It sensibly seeks to narrow the range of beneficiaries to the group that has suffered the evils of slavery, segregation and widespread discrimination. It would preserve preferences as exceptional, rather than typical. And it would continue to view them as temporary.

The problem with this attractive strategy is that it is increasingly unsustainable in a multiracial society. If we are going to insist that middle-class blacks deserve preference for admissions and jobs over the poorest members of all other groups, this will not only produce acute resentment, it will probably stigmatize African Americans as inherently inferior. Whites, Hispanics, Asians and Native Americans would all be competing together, with a kind of Special Olympics reserved for blacks. The moral and psychological damage would almost certainly outweigh any tangible short-term benefits, so that the only workable scheme is one proposed by sociologists Lawrence Fuchs: Limit affirmative action now to African-Americans and set a date, perhaps 2010, when “all counting by race should be phased out.”

The third option is a blanket nondiscrimination rule , which requires the enforcement of colorblind principles both in the private and public sectors. This is the approach that Martin Luther King, Jr. favored, and the one that was written into law in the Civil Rights Act of 1964. Liberals such as Jim Sleeper, Randall Kennedy, William Julius Wilson and Clarence Page as well as conservatives such as Newt Gingrich and Jack Kemp are trying to revive this approach, typically combined with a demand for class-based affirmative action.

The benefit of this colorblind strategy is that it would use a single standard to implement civil rights laws. Whites and blacks would enjoy the same degree of protection, and so would other groups. Resources currently invested in promoting proportional representation could be more sensibly invested in strictly enforcing antidiscrimination laws.

Yet the cardinal weakness of the broad-based colorblind rule is that, if applied even-handedly, it would require the government to outlaw minority companies from giving preferences to members of their own group. Peek into a Korean grocery store and what you often see, in the back, is other Korean workers. Similarly, black-owned businesses may seek out African-American employees. Should the government prohibit these obvious displays of minority ethnocentrism? Such interference makes no sense, particularly considering the fact that earlier generations of ethnic minorities such as Jews have advanced by helping their own people.

The limitations of the previous three policy options invite us to consider a fourth, which is based on the distinction, crucial to a liberal society, between the public and private sphere. This approach holds the government to a rigorous standard of colorblindness, while allowing private actors to be free to discriminate as they wish. In practice, this means uncompromising race neutrality in government hiring and promotion, criminal justice, and the drawing of voting districts. Yet individuals and companies would be allowed to discriminate in private transactions such as selecting a business partner or hiring for a job. Am I calling for a repeal of the Civil Rights Act of 1964? Actually, yes. The law should be changed so that its nondiscrimination provisions apply only to the government.

In a recent book, legal scholar Richard Epstein argues that “discrimination laws represent the antithesis of freedom of contract,” Mr. Epstein asserts that people should be free to hire and fire people for good reason, bad reason, or no reason at all. He challenges the strongly held belief of many Americans that they have a right not to be discriminated against: In a free society, he counters, they have aright to enter into voluntary transactions that other parties should be at liberty to accept or refuse.

Without putting it this way, Mr. Epstein is defending ethnocentrism as not only natural but also justifiable. He implies, and I agree, that this is a defensible and in some cases even admirable trait. What is the argument for preventing people from giving jobs and benefits, which are theirs to give, to those whom they prefer? Admittedly in some cases the job goes to the nephew of the boss. This, in the boss’s mind, is his nephew’s “merit”—to be related to him. Such nepotism, although reprehensible in the public sector where the government has an obligation to treat citizens equally, is entirely appropriate in the competitive private sector where the economic cost of selecting the less competent falls on the individual or company making the selection.

I can already hear the gasps of civil rights activists. Absent legal penalties, they will warn, many companies would simply refuse to hire blacks even when they have demonstrated that they are best qualified candidates for jobs. Since such behavior makes no economic sense, we can expect it will be relatively infrequent in a competitive market.

To see why markets tend to eliminate irrational discrimination, consider sociologist Christopher Jencks’s example of what would happen if every baseball team in America refused to hire blacks. Blacks would suffer most, because they would be denied the opportunity to play professional baseball. And fans would suffer, because the quality of games would be diminished. But what if only a few teams- say the Yankees and the Dodgers- refused to hire blacks? African-Americans as a group would suffer hardly at all, because the best black players would offer their services to other teams. The Yankees and the Dodgers would suffer a great deal, because they would be deprived of the chance to hire talented black players. Eventually, competitive pressure would force the Yankees and Dodgers either to hire blacks, or to suffer losses in games and revenue.

On the other hand, some forms of discrimination- rational discrimination based upon statistically accurate group judgments that are nevertheless unfair to some members within the group- are likely to persist. Yet anyone unfamiliar with today’s work force knows that discrimination against blacks has declined dramatically and is now furtive and largely anecdotal, while discrimination in favor of blacks is systematic, openly practiced and legally sanctioned.

Consequently, if faced with the alternative of an enforced colorblind approach, many African-Americans who recognize the pervasiveness of contemporary preferences in their own favor might well prefer to see those benefits continue, and thus would be willing to pay the price of tolerating a few relatively isolated employers who would refuse to hire blacks Thus we arrive at a supreme irony: The best way for African-Americans to save private-sector affirmative action may be to repeal the Civil Rights Act of 1964.

The Central Choice

The issue of private discrimination is important, but whichever way it is settled, the central choice facing American society is whether its agencies of government are going to embrace racial categorization of citizens and practice racial discrimination, or reject it and treat Americans equally under the law. America will never liberate itself from the shackles of the past until the government gets out of the race business.

Some activists agree that in an ideal world the government would not privilege citizens on the basis of color; yet in today’s society, these self-styled realists contend, race-based policies are indispensable because, as African-American scholar Cornel West puts it, “race matters.” But precisely because race matters, one can argue that the government should not play favorites.

Consider the separation of church and state: The reason for its enactment in the West was not that religion didn’t matter. On the contrary, precisely because people were killing each other over their faith, some form of separation became an appealing and indispensable solution. What we now need is what economist Jennifer Roback calls “separation of race and state.”

Separation is based on the recognition of the harm that government-imposed racial distinctions have done. The best safety of citizens, consequently, lies in refusing to trust the state with a power that they are unable to trust themselves to use wisely. As theologian Courtney Murray wrote, when it comes to religion, the American founders established not “articles of faith” but “articles of peace.” By permitting the free and voluntary interaction of citizens with in a framework of state neutrality, America can begin the job of transcending the pathology of race and move closer toward the destination that we can term “the end of racism.”

(See also: The End of Racism)