February 7, 2002 | Lecture on Legal Issues
Many Americans will be invoking the memory of Dr. Martin Luther King, Jr., looking to his words and example for inspiration on this holiday weekend. The Heritage Foundation honors Dr. King, as it has now for several years, by inviting a prominent person to give a lecture here in his name. Previous such lectures have been delivered by Ward Connerly, J.C. Watts, and Shelby Steele.
There are many things, of course, which conservatives do not like about Dr. King. For one, he became too close, later in his career, to the welfare state. He was enamored of the theology of the Social Gospel, the movement that undermined much of mainstream Protestantism in the 20th century. Later in life, he was a vocal opponent of American involvement in the Vietnam War. And we now know that in his scholarship and personal life King was far from perfect.
First, of course, concerns the question of race. King dreamed of a nation for his children where they would be judged not by the color of their skin but by the content of their character. He dreamed of a color-blind society, based on the equality of all Americans and their sharing of equal unalienable rights.
The American dream, King said at Lincoln University in 1961, "says that each individual has certain basic rights that are neither conferred by nor derived from the state. To discover where they came from it is necessary to move back behind the dim mist of eternity, for they are God-given. . . . The American dream reminds us that every man is heir to the legacy of worthiness."
Second, Dr. King believed in moral character. He spoke of self-improvement and self-help, in both moral and practical terms, and believed in the work-ethic, and thrift, and spoke against crime and disorderly conduct.
He also stressed the importance of the traditional family. Indeed, King's fears about black family breakdown led him to become one of the few civil rights leaders not to reject Daniel Patrick Moynihan's controversial 1965 report that warned of rising illegitimacy rates among blacks.
This forgotten aspect of King's thought is told in the current issue of City Journal by Joel Schwartz, who suggests that King turned to the welfare state when he became disheartened by the emergence of the black underclass.
Third, Dr. King embraced not multiculturalism but the Western tradition of knowledge, wisdom, and faith, reaching back through the likes of Reinhold Niebuhr, John Locke, and Martin Luther to Thomas Aquinas, Aristotle, and Plato. And he firmly embraced this nation and its commitment to ideals rooted in that great tradition.
"When these disinherited children of God sat down at lunch counters," King wrote in his Letter From a Birmingham Jail, "they were in reality standing up for what is best in the American dream and for the most sacred values in our Judaeo-Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence."
King's was not a world of moral relativism, but of self-evident truth and moral law. When he spoke of his dream he was appealing not to what divides us but to what we have in common, to the larger principles and ideals which transcend our diversity.
Mr. Kirsanow is past chair of the board of directors of the Center for New Black Leadership, and I would like to recognize that there are many members of the Center's board here today, as well as its president, Phyllis Berry Myers. Thank you for your great work.
Mr. Kirsanow formerly served as senior labor counsel of Leaseway Transportation Corporation and labor counsel for the city of Cleveland under Mayor George Voinovich, and has extensive experience in public-sector employment matters as well as in several industries. Mr. Kirsanow is currently a partner in the Cleveland law firm of Benesch, Friedlander, Coplan & Aronoff.
In December of last year, Mr. Kirsanow was duly appointed by the President of the United States to be a commissioner of the United States Commission on Civil Rights. We gather here today to publicly acknowledge this honor, and, in doing so, to honor Dr. Martin Luther King, Jr.
Matthew Spalding is director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.
Whenever one addresses the issue of civil rights, it is expected that something profound will be said. After all, this country was founded on an assertion of rights, its Civil War was fought in part on such assertion, and the dominant movement of the 20th century was the protection and advancement of civil rights.
Cornel West wrote a book called Race Matters. It's a clever title; depending on the inflection, it could mean two different things. Well, attitude matters for success in all things. General George S. Patton, the most successful battlefield general in U.S. history (or, for you Stonewall Jackson fans, at least since the Civil War), said "do ever in all things our damnedest, and never, oh never, retreat." He had--and all successful people have--the attitude of a winner. But since Martin Luther King, the sounds emanating from the civil rights discussions have the distinct sounds of a loser. And for this reason the civil rights discussion has become stale and sclerotic. It's infused with negativism, defeatism, and disillusionment about race relations and minority advancement. It presumes a permanent and irreducible degree of racism.
Understandably, this has made many cynical about civil rights, especially young blacks. They hear civil rights and they tune out. The subject, for all of its importance, has lost its vibrancy and its ability to inspire.
Our attitude, that of conservatives, is more optimistic--that of a happy warrior. There have been tremendous victories in the civil rights struggle over the years, and the country, for all of its faults, has achieved stunning successes in protecting civil rights for its citizens.
There is no doubt that for our nation to remain the greatest in the history of the world, we must fight relentlessly to preserve the rights of all, to ensure equality of opportunity. It's been said that the promise of freedom rings hollow without an unyielding commitment to the cause of civil rights. None can truly enjoy the benefits of liberty unless all are accorded the full panoply of rights to which individuals in our republic are entitled.
However, keep in mind that a multibillion-dollar apparatus has been erected to protect our rights. Think of all the bulwarks against discrimination: the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), the Office of Civil Rights in the Department of Justice, the Civil Rights Division of the Department of Education, the various state civil rights commissions, the innumerable local civil rights commissions, the tens of thousands of, in effect, private attorneys general who pursue actions under Title VII of the Civil Rights Act of 1964. Then there are Title VI and Title IX of the 1964 Civil Rights Act, the Voting Rights Act of 1965, the Fair Housing Act of 1968, the Civil Rights Act of 1991, Executive Order 11246, the Americans with Disabilities Act, the Age Discrimination and Employment Act, their state and local comparatives, affirmative action compliance officers in thousands of corporations and political subdivisions, and on and on.
The argument has been credibly made that we are in a post-civil rights era. After all, virtually all of the civil rights legislation that can be passed has been passed. This does not mean, as Francis Fukuyama might say, an end of history. To be sure, there are various and disparate issues which will arise from time to time--racial profiling, school choice, military tribunals, and the like. But most of these issues can readily be addressed by existing legislation, regulations, or judicial decisions.
Nonetheless, discussions concerning civil rights still largely revolve around a grievance-legislative model. And one is effectively excluded from such discussion unless you continue to address it in those terms. The same three-prong test is always applied to gauge whether one is truly committed to the cause of civil rights.
That test is: A commitment to what has euphemistically been called affirmative action; a view of civil rights as group rights, not individual rights; and entitlement and reparations as global remedies for past wrongs. Failure to pass at least one prong of this test is cause for banishment from the discussion.
The recent dustup at Harvard, at least as it has been reported, is just one example of the mindset that views commitment to affirmative action as a barometer for commitment to civil rights and minority advancement. If you are not sufficiently committed to one of the three prongs, you are necessarily unqualified to even engage in the civil rights discussion--and this is the primary reason why civil rights discussion has not advanced in a meaningful way in two generations and has, in effect, become stale and moribund.
Many who would otherwise be expected to be engaged in the civil rights debate and could bring substance to it are marginalized or feel the need to bow to political correctness because of their heretical views.
So the cause of civil rights has lacked innovative approaches because the debate has been driven by the three prongs. But there are three problems with the three prongs. The first problem was succinctly articulated by then-candidate George W. Bush during the 2000 presidential campaign. The three-prong standard promotes the "soft bigotry of low expectations." Of course, the soft bigotry of low expectations is not a novel concept. De Tocqueville actually hit upon it in 1828 when he said:
The species of oppression by which democratic nations are menaced is unlike anything which-ever before existed in the world. It does not tyrannize, but it compresses, enervates, extinguishes and stupefies a people until each nation becomes nothing more than a flock of timid animals of which the government is the shepherd.
An adherence to a civil rights model embracing affirmative action, group rights, and reparations is a species of oppression. It does enervate, extinguish, and stupefy. And if there is one quibble with the phrase "soft bigotry of low expectations," it is that the bigotry is not soft. It's pernicious, it's virulent.
Make absolutely no mistake: Those of us who call ourselves conservative strongly favor affirmative action, that is, affirmative action as originally conceived before it metastasized into a racial spoils system consisting of preferences, quotas, and set-asides. True affirmative action is a positive outreach to those who, by virtue of minority status, have been left out of mainstream opportunities.
But preferences are the perfect example of soft bigotry. Whether in government contracting or school admissions they not only discriminate, but promote discrimination against their very beneficiaries. Glenn Loury once used an economic model to show that preferences "alter the terms in which employers and workers (or schools and students--governments and contractors) interact with each other so as to perpetuate, rather than eliminate, existing disparities and productivity between minority and majority populations."
Loury notes that this is true because the beneficiaries of preferences can see that because of them, their grade point average or SAT scores need not be as high to gain admission, and workers need not have a level of skill equal to their white comparatives to get a particular job. Such individuals therefore have less incentive to invest in performance-enhancing studies or skills. This perpetuates the racial skill differential, which in turn perpetuates the stereotype of the incompetent "affirmative action baby." Remember, it used to be that blacks were held to impossibly high standards. Now, to the extent any standard can be discerned, they seem invariably to be low.
Loury's theory has considerable empirical support. Remember some of the amazing statistics emerging from Hopwood v. Texas and similar preference cases. Robert Klitgaard reported that 25 years ago, 27,470 whites scored 650 or above on the Graduate Record Exam; only 143 blacks did so. Whites were 30 times more likely to score above 650 than blacks.
Anyone who has seen the astonishing report on college admissions issued by the Center for Equal Opportunity last year knows that things have not changed. And just this past week, the state of New Jersey reported that 78 percent of white students were proficient in math, science, and language versus 35 percent of blacks.
Preference proponents have long argued that one of the principal reasons for the disparity in scores is that standardized tests are culturally biased. But we now know that there are a number of problems with this argument. Over the last 30 years these tests have been reworked to eliminate the alleged biases, yet the statistical disparities remain. Moreover, if they were indeed culturally biased, the tests would tend to underpredict or underestimate actual minority performance, but instead they have historically done just the opposite. Finally, it remains puzzling how the tests can be biased against the most "American" of ethnic groups--the groups that actually drive the culture--yet not be biased against, for example, Korean immigrants who speak English as a second language and who have not been immersed in the culture.
The fallout from Proposition 209 is a stark example of this phenomenon. Immediately after its passage, the numbers of blacks and Hispanics at elite California schools plummeted and racialists were in a tizzy, pronouncing this an educational holocaust. But then a funny thing happened: the number of blacks at less prestigious schools climbed prodigiously. What was happening was quite obvious to all but the experts. Students were self-selecting. As Dirty Harry said in Magnum Force, "A man's got to know his limitations." People inherently know at what level they can compete. This makes students more likely to graduate. Some like to celebrate the number of minorities being admitted, regardless of whether they emerge with a degree. A better measure is how many graduate and become productive members of society. It is a cruel hoax to place a poorly prepared student in an academic environment in which he cannot compete and call it affirmative action. It does nothing but insure failure, promote resentment, and enforce stereotypes.
But getting back to the three prongs. The second problem with them is that they inherently promote disunity and Balkanization instead of unity. They encourage us to count by race and to be more race-sensitive. For a number of years now we have been urged to celebrate our "diversity." I see the bumper sticker all the time. Indeed, a while back John Leo noted that the tendency toward group identity has become so pronounced that Armenian Americans are (or at least were when he wrote this) a protected class in Pasadena. Portuguese immigrants are a protected class in Massachusetts. Louisiana protects French Arcadians. Italian Americans qualify for affirmative action at the University of New York. People of Appalachian origin are protected in Cincinnati. Transsexuals are protected in Minneapolis, Seattle, San Francisco.
This isn't diversity, it's lunacy. America's strength comes not from diversity but from unity. That has never been more powerfully demonstrated than in the aftermath of the September 11 terrorist attacks. This is one nation under God, and we do best to assiduously avoid policies that tend to separate us.
While the condition of the black community is related to slavery, the residual effects of past discrimination, and current discrimination, and while we must always be a vigilant to vigorously enforce existing civil rights laws, improving the condition of minorities in this country is dependent on improving the economic condition of minorities, which, in turn, is largely dependent on education; which, in turn, is dependent on community standards and culture; which, in turn, is dependent on the family.
The reality in 2002 is that traditional civil rights issues are only a fringe player compared to a strong and vibrant family in promoting minority success. As Robert Rector and others indicated six or seven years ago, if you take two children who are in all respects similarly situated--same age, same income, same education--the one that comes from a two-parent family (and these figures are rounded approximations and an amalgam of different studies) is 50 percent less likely to be unemployed; 40 percent less likely to commit a crime; 50 percent less likely to use drugs; 60 percent less likely to drop out of school; 40 percent less likely to father a child out of wedlock; 80 percent less likely to be on welfare; 70 percent less likely to be poor.
Well, we all know winners. Let's use sports as an example. The winners may have various traits. Some run fast, jump high, or are very strong. But they all have a common attribute. They have the attitude of a winner. A winner is somebody who doesn't take things for granted, doesn't take advantage of certain preferences. For example, you cannot imagine telling Barry Bonds, Sammy Sosa, or Ken Griffey that they could have four strikes instead of three strikes like everybody else in the major leagues. They would spit in your face, justifiably. They're not going to accept that.
Or Marion Jones, Michael Johnson. You could not give them a 5-meter lead in their races. They simply would not take it. It's an insult. It's demeaning. Tiger Woods isn't going to take a mulligan. Winners do not do these kinds of things.
But in society, we're doing it constantly, and then we expect the purported beneficiaries to act as fully formed human beings. Everyone knows what's happening. It's not just psychologically bad, it's morally bad, and it doesn't work. We've been proving that over the past 30 years. Even if you don't care about whether it's right or wrong, the utilitarian argument says, abandon it. Act like a winner. Approach all civil rights issues as a winner.
Second, eliminate all racial classifications not justified by a compelling governmental interest. It's the law anyway. The mantra for a while was "Mend it, don't end it." I'm not aware--and I practice in this area of the law--of racial classifications or preferences that have truly been either mended or ended. If someone can tell me one, I'd really like to know.
Third, and this is one where there is no compromise: Vigorously enforce existing civil rights laws with all the resources at our disposal. As conservatives, we know that there must be an equal playing field, a level playing field. There must be color-blindness. But at the same time, there is an historical memory in certain communities in this country. You cannot say to somebody who is waiting for the next shoe to drop, and has reason to think that because of a legacy that his family has experienced that, look, from now on this is how we're going to be doing things. We're going to be color-blind. We're going to do things equally. There has to be an explicit fundamental assurance that everybody is committed to protecting civil rights. The multibillion-dollar structure that I talked about must work.
And, fourth, add personal responsibility to the civil rights equation. How is that done? It's done by emphasizing that we have a right not to be patronized; a right not to be treated in a paternalistic, condescending manner, like some delicate botanical specimen. But rather as responsible, competent human beings, fully formed human beings, from whom competence and responsibility are actually expected, from whom excellence is an expectation and not a surprise. We have a right not to have victimhood status forced upon us, to be society's designated losers, perpetual supplicants. In short, to be treated as winners, not as losers.
Do these things and the cause of civil rights will regain its spark, we'll shed our cynicism. We will treat each other as fellow Americans, not hyphenated Americans. We will raise the bar high, we will strive for excellence, not settle for mediocrity. And we'll judge everyone by the content of their character--and do ever in all things our damnedest and never, oh never, retreat.
Peter N. Kirsanow was appointed by President Bush to the U.S. Commission on Civil Rights in December 2001.