Debate about racial-preference policies stirs particularly strong passions because it evokes one of the central animating concerns of liberal constitutionalism—its opposition to any system of hereditary castes. But there is little agreement today about what the constitutional principle of equality actually requires.
Some version of racial equality has always been insisted on, at least since the ratification of the fourteenth amendment. Even in the 1890s, when the Supreme Court acquiesced to racial segregation in the South, it insisted that the separation of the races should not be understood to "imply the inferiority of either race" or be taken as a sign of governmental preference for one race over another. At the same time, however, the Court observed in plessy v. ferguson (1896) that "in the nature of things," the Fourteenth Amendment "could not have been intended to … enforce social as distinguished from political equality.…" The Court treated racial bias and inequality among private citizens as equivalent to class antagonisms between rich and poor or to sectarian tensions between rival religious faiths—facts of life that a constitutional government could not expect to suppress.
For a brief period following the modern Supreme Court's ruling against school separation in brown v. board of education (1954), there seemed to be an emerging consensus that equality would, after all, be best served by dismantling all racial distinctions in public law. Thus, the historic civil rights act of 1964 prohibited, in general terms, "discrimination on the basis of race," rather than discrimination against blacks or other racial minorities in particular. But, among other things, the 1964 legislation sought for the first time to prohibit employment discrimination throughout the American economy. Was this done to enforce a new ideal of social indifference to race or to improve the economic condition of depressed minorities?
Legislative history might be cited to support either view, but the latter view largely prevailed in federal enforcement policy. By the early 1970s, federal officials had come to define racial discrimination as any employment standard that disproportionately excluded minority applicants, regardless of the employer's intent; in this and other ways, government policy, with approval from the courts, pressed employers to redefine their hiring and promotion policies to secure "appropriate" percentages of employees from specified minority groups, even if this required passing over better-qualified whites. (See, for example, griggs v. duke power (1971) and united steelworkers of america v. weber (1979).) With federal encouragement, state programs also offered preferences to minority students in admissions to professional schools (regents of university of california v. bakke, 1978); other programs began to offer preferences to minority businessmen, as, for example, to minority-owned firms bidding for federal construction grants (fullilove v. klutznick, 1980).
Court decisions upholding such practices generally invoked the need to "remedy" past discrimination, implying that localized preferences were acceptable only as temporary correctives to offset the effects of particular past abuses. In 1990, however, a five-Justice majority of the Supreme Court upheld a minority-preference policy in the award of broadcast licenses by the Federal Communications Commission (FCC). Noting the small number of minority-owned stations, the Court, in metro broadcasting, inc. v. fcc (1990), endorsed an explicit preference policy as a permissible device for ensuring broadcasting "diversity," disclaiming any need to consider whether there had actually been a history of past discrimination in this particular field.
Critics of such preference policies—including dissenting Justices—have protested that they violate the spirit of constitutional guarantees and the letter of the civil rights laws by prescribing different standards for whites and minorities. Worse, the critics argue, such policies treat minority individuals, not as actual individuals with their own personal merits, but as mere representatives of their racial groups. Defenders of preferential policies insist that civil-rights legislation and constitutional guarantees have been established to help minorities overcome the effects of discrimination and that such help should not be denied for the sake of an entirely abstract and unrealistic doctrine of equal treatment. They argue that guarantees of equality or nondiscrimination should be seen as bulwarks against policies that "stigmatize" or "subjugate" people because of their race, and no affirmative action program, they say, can seriously be regarded as "stigmatizing" or "subjugating" whites as a whole. The critics of preference policies respond that, insofar as preference policies assume that whites would still exclude others without such mandatory preferences, the policies do stigmatize whites—as racist; insofar as preference policies assume that blacks and other minorities could not compete in American society without such governmental preferences, they stigmatize minorities as incapable.
Not surprisingly, critics of preference policies, emphasizing the potential for manipulation and abuse in governmental controls, would place more reliance on the working of private-market decision making; those who defend preference policies tend to take a much more sanguine view of governmental intervention and to regard racially unequal outcomes in the market as inherently suspect. But the debate about racial preference is not simply a special case of a larger argument about the proper scope of government. Neither liberals nor conservatives on the Supreme Court would be likely, for example, to tolerate a policy that sought to enhance broadcasting "diversity" by providing preference to non-Jewish or non-Protestant firms in the award of broadcasting licenses by the FCC.
In fact, the Court has repeatedly struck down governmental financial aid to religious schools, even though such programs might well be seen as efforts to equalize educational opportunity for religious minorities. Such programs, the Court insisted in lemon v. kurtzman (1973), carry too much potential for political divisiveness, setting religious school constituencies against public school constituencies. Yet many of the same Justices and commentators who have most insistently opposed such aid to religious minorities have been quite sympathetic to government preference policies based on race. The difference is not plausibly explained on the grounds that religion is more divisive than race in contemporary American society. If anything, it seems to be the severity of racial divisions in American society that makes proponents of racial-preference policies regard them as necessary.
Recent studies suggest that despite two decades of racial preference policies the gap between whites and blacks in earnings and in educational attainments is scarcely diminished since the 1960s and in some areas is greater than it was. Some critics of racial preference see this as an additional reason for abandoning such programs. Many supporters of these programs regard this fact instead as an additional reason for redoubling the scale and intensity of preference. This may prove an area of constitutional dispute that is too large to be solved by mere judicial pronouncements.
Abram, Morris B. 1986 Affirmative Action: Fair Shakers and Social Engineers. Harvard Law Review 99:1312–1326.
Strauss, David A. 1986 The Myth of Colorblindness. Supreme Court Review 1986:99–134.