The author has chosen to use a question-answer format in order to make the often complex subject matter, easier and more enjoyable to read. Q and A is not a dialogue between real people -- the author has provided the dialogue for both Q, standing for Quaero, which is Latin means "I search for" and A, Auctor, which in Latin means "person responsible."
Q- How do you view civil rights in the United States today?
A-I would like to say that things have never been better, and in many areas that would be true. Opportunities for women, the disabled, the elderly and those of various ethnic and religious backgrounds have expanded so that more individuals in each category have access to educational and career opportunities than ever before.
However, I think we made a wrong turn along the road towards justice and harmonious race relations in this country. Everyone is seeing the results now in the unrest on campuses and the return of so-called hate crimes. Some predict even greater troubles in the future.
Q-What do you suggest?
A-First, we have to define the problem .
Second, see where we are and how we got here.
Third, determine our real goal.
Fourth, decide how to reach it.
Q-That sounds like a large order for a short discussion.
A-In condensed form:
I see our problem as trying to provide equal economic, social and political opportunities to relatively powerless minorities while not trampling the so-called rights of the more powerful majority.
Unfortunately, we have managed to make all parties concerned feel they have been unjustly treated at the hands of government. I would say this has happened because, as a nation we were impatient, proceeded too quickly and used force.
Q-That defines the problem. Now for a brief look at where we are now, which should reveal the extent of the problem.
A-Let's look at some statistics: About one percent of the entire population is made up of about 2.5 million black males age 16 to 25. 647,000 are in high school and 351,000 are in college according to the 1990 census. Another million are gainfully employed and 163,000 are in the military.
Statistics show annual wage and salary income for 25-34 year old black men increased from forty-seven percent to sixty percent of that of white men between 1940-1960 and from sixty percent to seventy-five percent between 1960-1980!
Q-But what about all the young black males that want to be working and can't find jobs?
A-I refer you to all the arguments that were brought up to fight the minimum wage laws. Unfortunately the high unemployment rates among young and entry level workers---black and white---are proof of the validity of those argument against a minimum wage.
Q-Has unemployment gotten worse among black males?
A-In 1962, almost sixty percent of young black males were employed, but by 1985 this figure had fallen to forty-four percent. But there are estimates that more than 25 percent of black males in this age group derive their income from illegal activities---so if you want to figure in illegal activities, the employment rate has not declined that much.
Q-In other words, legitimate employment is down but illegitimate is up.
A-But there are those who claim the high rates of unemployment, illiteracy, drugs, alcohol, AIDS and violent crime among the black underclass would not disappear if racism were eradicated tomorrow.
Q-Doug Wilder, Governor of Virginia delivered a speech at the end of March, 1991 in which he recited statistics: one in four black males ages 20 to 29 are in the wrong end of the criminal justice system as opposed to one in sixteen whites and one in ten Hispanic males. The leading cause of death for black males ages 15 to 24 is violence. They have drug pushers as role models so what do you expect? Fifty-one percent of black families with children under age 18 are headed by single mothers. "These young men and women want to have a future, it is imperative that they embrace the ultimate precaution: abstinence.", he said.
A-Columnist, William Raspberry admonished members of his race with the same type rhetoric claiming blacks blame their shortcomings on racism whereas Asian Americans believe their own efforts can make the difference and they approach society with the attitude that they are going to succeed "no matter what white people think".
Q-There is no doubt that deterioration in the black family has picked up speed.
A-The poverty rate of children in black single-headed families is almost fifty percent--in black two-parent homes it's 10.6 percent compared to similar white families where the child poverty rate is 6.4 percent. More than forty-two percent of black families with children are headed by single mothers compared with thirteen percent among whites.
Q-I remember a passage in one of your books on the deficit where you wrote that there is no such thing as "child poverty". I don't recall the exact wording but the idea you conveyed was that all children by themselves are poor; that when we talk about child poverty we are talking about the economic circumstances of the family where the child resides---child poverty appeals to the emotions of the listener better than speaking of family poverty.
A-I still believe that. It is just easier to use the terms that surveys and polls use when reporting their results.
Q-For someone who doesn't like statistics and advocates looking at people as whole individuals and not members of a group, don't you think you might be conveying a hypocritical image when you focus so heavily on black this and that?
A-You may be right about the image, but again I plead ease of communication. Statistics are reported using groups and I detest the practice even though I find myself using it out of necessity. I certainly haven't softened my opinion regarding statistics, which I think are far too often misleading, nor of stereotyped groupings, which I abhor. No one will ever convince me of anything merely by using statistics---you can get sets of numbers to show whatever you want. I much prefer to weigh things on broad philosophical principles.
Q-Such as?
A-In weighing an issue I always ask, "Does this course of action offer individuals more freedom, flexibility and opportunity?"
Q-Civil rights, instead of eliminating discrimination wherever it exists now seeks to guarantee representation of groups.
A-John Bunzel, a fellow at the Hoover Institution and former college president and member of the U. S. Commission on Civil Rights in a speech before the Commonwealth Club on April 19, 1991 told of an Israeli socialist who found that "those nations that have put freedom ahead of equality have ended up doing better by equality than those that put equality ahead of freedom." I believe it!
Q-What do you say to a study by Bennet Harrison of MIT and consultant Lucy Gorham that found that one out of three black male college graduates earned wages in 1987 that fell below the poverty line of about $12,000 for a family of four compared with one out of six for white male college grads?
They found the number of college-educated black men earning $36,000 or more (in 1987 dollars) actually fell by about 28,000 from 1979 to 1987---a time when black male college enrollment was declining.
A-On the other hand, George Gilder found, in researching his 1982 book Wealth and Poverty, that college educated and professional black women earned 125 percent as much as their white counterparts.
Q-That's hard to reconcile with Harrison's findings that the number of college-educated black women earning at least $36,000 rose by only seven percent or 1,500 while almost fifty percent of black female college grads earned poverty-level wages
A-There are many reasons these women are earning poverty-level incomes. Black women experience divorce, separation, illegitimacy, uncontrollable children and an extreme shortage of loving and supporting husbands. Nevertheless, Gilder found between 1957-1977 black women improved their median incomes, occupational status and entry into high-level positions at a rate more than three times as fast as black men did.
Q-And I suppose here you would be wise to research what was happening in the lives of black men to account for their slow advancement?
A-You've got it! Numbers don't enlighten much unless you take the time to look in, around, behind and under them. From a historical perspective George Gilder uncovered an interesting set though :
"Beginning with incomes around 50 percent of the incomes of black men and 57 percent of the incomes of white women, black women ended the period by earning more than 80 percent of black male incomes and 99 percent of the white female level...by 1969 there were 16 percent more black women than men in professional and managerial positions in the U.S. economy and these women were earning three-fourths as much as black men."
Q-When it comes down to it the fact that the black population is about seven years younger than the white population and lives more predominantly in the South, the lowest-income region in the country, has a lot to do with the disparity between black and white incomes.
A-I've heard that also. In fact Mr. Gilder reported that if both age and location were the same between the two races, blacks would be found to have earnings about 80 percent that of whites. He found in 1980 that families headed by 22 year old, white and black, had median incomes about $5,000 less than families headed by 33 year olds. Blacks in New York City were earning almost two and a half times what blacks were earning in Mississippi.
Q-People point to the disproportionate amount of blacks in the criminal system as evidence of racism. What do you say?
A-I realize racism still exists in this country but that doesn't mean it is automatically the cause of a disproportionate prison population. There are other reasons for the high number of black criminals.
Q-Such as?
A-Such as the disintegration of the black family, as we discussed earlier, lack of good black role models and demographics.
Q-What do you mean, "demographics"?
A-The median age of white Americans is 32 and for blacks it is 22 years. Young people are more inclined to commit criminal acts.
Q-It is understandable that blacks initially joined the party of Lincoln and were for a long time Republicans.
A-I suppose you mean "understandable" in that the Republican party was in firm control during and immediately following the civil war and was determined that individual rights should be protected as promised in the Constitution. They felt that with the abolishment of slavery those promises could and would be kept.
Q-So what happened?
A-The so-called "black codes" reared their ugly head following the war, especially in the South.
Q-What were the "black codes"?
A-They were regulations on employment and labor contracts; an attempt to keep the emancipated slaves from "making it" economically. Republicans responded with the civil rights act of 1866 which was an effort to protect individual rights, with an emphasis on economic rights, from infringement by state government.
Q-Wasn't that legislation vetoed by President Andrew Johnson?
A-You're right, but the congress overrode the veto. Because many politicians feared the civil rights act might later be overturned, the 14th amendment was proposed as a permanent addition to the Constitution and was finally ratified in July 1868.
If Lincoln had lived the story of blacks and civil rights might have been different but as it was, both the Johnson and Grant administrations had more than their share of incompetence and corruption and the civil rights of blacks never got much of a chance.
However, the greatest and most enduring tragedy of those hard post-civil war years was the abdication by the Supreme Court of its duty to protect the individual civil rights of all people.
Q-You mean the civil rights legislation was challenged?
A-No. I'm referring to the far reaching decision in what is known as the Slaughter-House cases which were decided in 1873, well after the civil rights bill and the 14th amendment. The Supreme Court upheld a Louisiana state law which closed certain slaughterhouses in New Orleans and granted a monopoly to others, in effect barring employment to "newcomers" ---the code word for racial minorities.
Q-That made it a "civil rights" issue?
A-The real significance of the Slaughter-House decision was the interpretation given to the equal protection clause in the U. S. Constitution. It recognized that citizens had two sets of rights; one federal and the other state.
Q-I get it. This allowed states to make their own laws denying blacks rights to public places without the federal government stepping in.
A-Blacks weren't denied rights to public places, they just had separate public places.
Q-Separate but equal!
A-You're jumping the gun. The "separate but equal" doctrine was the result of the better known 1896 case, Plessy v Ferguson which has had long lasting implications and bears some responsibility for the racial problems we are facing today. Plessy justified government's reliance on special "racial facts" as a basis for legislation and allowed the classification of people by race as long as the classifications were reasonable.
That was bad enough but the earlier 1873 ruling went beyond race to favoritism in general. It allows government to continue its damaging policy of granting favors to one group of people at the expense of others.
Q-It sounds like equal protection was undermined by Slaughter-House and turned into a joke.
A-You're right, Slaughter-House has stood as a precedent undermining the ability of individual citizens to pursue their best economic advantage in a free market environment under the protection of the national government. There are people today working to overturn Slaughter-House as the surest way to ensure equal protection for all Americans.
Q- What would reversing Slaughter-House mean?
A- It would mean that in matters affecting the privileges and immunities of citizenship the courts would no longer automatically defer to the legislative branch, but would find a constitutional presumption in favor of individual liberty. Individual and especially economic liberty is our most precious civil right; economic liberty leads to individual empowerment.
Q- So you might say Slaughter-House stands in direct opposition to fundamental individual rights?
A- I would. Our greatest hope for protecting fundamental individual rights in the future is to concentrate on restoring the privileges and immunities clause and expanding the due process clause of the 14th amendment so that they once again encompass economic liberty as the framers of that amendment intended. As far as I'm concerned, the most urgent, unfinished business of our democracy is economic injustice.
Q-What about the case that made Thurgood Marshall the most successful civil rights lawyer in history?
A-Brown v Board of Education (1954) was definitely a landmark decision. Interestingly Thurgood Marshall invoked the ideas of Locke and natural rights as the foundation on which this country was founded in knocking down the separate but equal doctrine. He based his attack on the belief that the "Constitution is color-blind".
Q- Martin Luther King recognized that our Declaration of Independence was based on Locke's insights "that there are certain basic rights that are neither conferred by nor derived from the state ". . . and that this principle is the distinguishing characteristic of the United States of America, setting her apart "from systems of government which make the state an end within itself."
A-Marshall was definitely influenced by Martin Luther King but he also had another hero at that time. He liked to quote the lone dissenter in Plessy v Ferguson, Justice John Harlan who wrote that, "The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."
Justice Harlan was dismayed that the majority in the court "reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race."
Q-But I thought as a Justice on the Supreme Court, Thurgood Marshall championed racial classifications?
A-That's true, in the eighties he trivialized his old hero pointing out that the idea that the U.S. Constitution is color-blind was held by only one Justice in 1894.
Q-I've heard Justice Harry Blackmun referred to as an "Orwellian Justice". What does that mean?
A-I haven't heard that but it was Justice Harry Blackmun who said, ". . .in order to get beyond racism, we must first take account of race. . . .And in order to treat some persons equally, we must treat them differently" That sure reminds me of Orwell's "War is Peace, Love is Hate, Ignorance is Truth!" Could that be it?
Q- I've been wondering how the Democrats captured the black vote?
A-FDR provided jobs and government relief payments to the unemployed, and that included most blacks. Then with President Truman's integration of the armed forces in 1948 and President Johnson's push for civil-rights and his War-On-Poverty, the Democrats built up an impressive record of doing something about the issues that were of most interest to blacks. It is not that Republicans were against the gains made in increasing opportunities for black people, but the Democrats got credit for the gains because they so often occurred on their watch.
Q-Don't you think that as people become producing and contributing members of society ---givers rather than takers--- the ties to the party whose goal it is to redistribute income is bound to lessen?
A-Those far more knowledgeable about voting trends than I, claim that people vote their pocket books. In that case the Republican party should expect to attract more blacks because the black middle class has grown by nearly a third since 1980 and is now for the first time ever, the dominant income group in black America.
A survey published in 1986 by the Joint Center for Political Studies, a black political DC think tank, two-thirds of blacks said they had kept pace economically or moved ahead during the Reagan years.
These perceptions are backed up by government statistics but are not widely broadcast. More blacks were working in the eighties and at higher wages than ever before. Black family incomes were at an all-time high having increased by roughly six percent in real terms over an eight year period. The number of black professionals has increased an amazing sixty-three percent since 1980. Black managers and officers in corporate America increased in number by thirty percent over the same time span.
In 1990 Fortune magazine polled 1,000 Americans nationwide and found that seventy percent of the blacks and sixty-two percent of the whites thought they had a good chance for advancement in the future. Eighty-eight percent of blacks thought their generation's chances were better for success than their parents chances had been, whereas only seventy-seven percent of whites felt that way.
Q-It is widely believed that blacks have been losing ground in all these areas. How can that be?
A-We could compare statistics all day. According to that 1990 poll most blacks thought they were moving forward, not slipping back as we hear and read so often in the popular press.
In fact from 1967 to 1987 black households earning $50,000 or more rose from 212,000 to 764,000--a 360 percent increase, having doubled between 1982 and 1987--the Reagan years! The total income of America's 28 million blacks was $237 billion just in 1988 which is larger than the gross domestic product of all but ten nations in the world!
Q-But I heard that the set of statistics showing that black men and women gained relative to white men in terms of median income, earnings, hourly wage rates and occupational status were based on data collected from people already attached to the labor force.
A-As far as I know the main source of information on annual changes in black earnings excludes individuals who are out of the labor force altogether or who have only marginal attachment to the labor force.
Q-The unemployed.
A-So what's your point? There are plenty of statistics focusing specifically on employed and unemployed. In 1960 black male employment was about equal to that of white males. By 1982 12 percent of prime-age black males were unemployed compared to only 5 percent of white males. That was definitely a slip backwards in terms of black unemployment rates.
Q-I still don't understand why we hear so much about poverty and ghettos and so little about positive gains?
A-Blacks tend to identify their overall status by those blacks that are the very worst off. Even though the majority may have made progress during the 1980s, they continue to focus on the fortunes of their poorest members. Among black voters, civil-rights is the number one issue, with poor blacks a close second and upward mobility holding third place. Surveys have determined that self-help, drug problems, welfare reform and even family values are all subordinate to the top three issues.
Q-I noticed that a lot of middle class blacks are likely to feel they owe their new status to opportunities created by the federal government.
A-I think you're right. It seems like the well-educated blacks who used federal and state grants and loans to finance their schooling, sometimes end up feeling like they owe their jobs to affirmative action and therefore they are likely to take any threat to these programs as a personal affront. As long as one-third of all blacks are mired in poverty, the rest will not hear of scraping any of the programs they believe was their ticket out of poverty.
Q-So why is there so much poverty in the black community?
A-I believe the real cause of poverty, black and white, is disintegration of the family. According to Martin Peretz, editor of the New Republic, the central problem of race relations is one of social and economic differences. Sixty percent of babies born to unwed mothers are born to black mothers. The number of black households headed by married couples has fallen almost 20 percentage points from 20 years ago, from fifty-five percent to thirty-six percent.
Prior to 1960 the black family was largely composed of married-couple families. There are proportionately twice as many black as white single men. If the differences between blacks and whites are corrected for marital status, the gap between the earnings of black and white males of truly comparable family background and credentials completely disappears.
Q-Are you agreeing with those that believe the welfare state contributed to the collapse of the black family?
A-Senator Moynihan of New York, over twenty-five years ago, was the first to point out the connection between the curve of unemployment and family dissolution, between family instability and welfare dependency.
The welfare system has expanded its services and eligibility requirements even further since then. For many in the lower half of the income distribution, welfare has been too tempting to pass up. The guaranteed income coupled with food stamps, WIC program food benefits, Medicaid, subsidized housing and other benefits has been irresistible. Mothers with illegitimate babies have had no reason to marry and young men faced with low paying jobs have had no reason to work. The current welfare system is structured primarily to assist non-employed single mothers. It has strong disincentives for work.
Q-Such as?
A-So-called payments-in-kind, including medical benefits and food and housing supplements, are taken away as welfare beneficiaries attempt to help themselves kick the habit of welfare by making money. Although payments-in-kind are not counted as income, they have contributed greatly to the economic attractiveness of the welfare alternative.
A welfare recipient becomes ineligible for these benefits before he or she (generally she) is able to replace them from earnings produced by hard work. The desire to get ahead is often quelled when a person finds government is willing to provide (as long as she doesn't work) what she is still not capable of providing on her own.
That's a real disincentive to work! A better way might be to expand the earned-income tax credit for families in the $10,000-$20,000 range.
Q-It seems like women are given money in our welfare culture as a right which frees men from having to get the same money through hard work.
A-I agree. Generation after generation of men have conquered poverty in this mobile society of ours, by working hard and using their wits as well as their brawn. Unfortunately our government antipoverty programs--to the extent they make the mother's situation better--tend to make the father's situation worse. Who needs a low-income earning male around when Uncle Sam is there to provide?
Q-But almost all immigrant males were low income providers at one time or another!
A-Forget "immigrant"--most males are still low income earners when they start out. Why are so many unemployed or why do they advance in their professions or jobs so slowly?
A-Most men, black or white, work hard out of a combination of love and necessity. The fact that they have dependent wives and children allows them to embrace hardships and make sacrifices that they would never consider out of pure selfish ambition. Their families provide incentive and so even though it is not "politically correct" to admit it, most men have ambivalent feelings about working wives, and when wives earn more, most males lose all incentives.
Q-I suppose it would follow that when wives earn less, the men tend to work harder and are far more likely to excel. That is a far cry from the popular perception that the strain of having insufficient resources and the responsibility of a family are obstacles to economic success. You seem to think they are the springboards that provide motivation. Am I right?
A-As far as you go. But it should be no surprise to find that low unemployment among black males is not a simple straight forward problem. Unfortunately they have some historical baggage that is not carried by males of other races or ethnic backgrounds.
Q-What do you mean?
A-There is ample evidence that without discrimination, present and past, blacks would achieve earnings comparable to whites. In 1864 the Freedmen's Bureau used federal funds to provide education, housing, health care and employment opportunities for blacks, regardless of their status before the Civil War as slaves or free men.
However, this so-called protection, like well-meaning subsequent legislation, did more harm than it did good, keeping the blacks in a childlike role different from immigrant groups that came to this country and were expected to make their own way.
For instance, Jews and Asians brought traditions of cooperation with them, which made it easier to set up enterprises in this country.
Q-I've heard that slavery destroyed the natural culture and tribal patterns of mutual aid.
A-The spirit of cooperation was tantamount in the economic development of each wave of immigrants. Charity began with immediate families, expanded to the enlarged family, moved into churches and associated benevolent groups, mutual aid societies, paternalistic businesses, unions, insurance corporations and finally settled on the state. In some ways, blacks in the nineties are facing the same problems as those new immigrants faced on their arrival; how to make up by dint of effort and ambition for a lack of family background and educational qualifications.
Q-I guess their cradling by the welfare state for so long has hurt them as a group because it discouraged work.
A-Additionally, black males were not absorbed into manufacturing the way white males were when they left the farms after the second world war.
Q-Why not?
A-They were kept out of unions and the Davis-Bacon legislation requiring that prevailing, generally meaning union wages, had to be paid to all government contractors pretty well kept them from working for the government. But as teenagers in the late forties their unemployment rates were lower than those of their white contemporaries. In the fifties many blacks left high school to work.
The participants in the dialogue have been discussing the many factors contributing the high proportion of blacks in poverty. Are there any ways to helps blacks overcome such situations ...?
Q-Have you ever heard of William Haskins? He proposed a national clearinghouse for mentors, so successful blacks could attempt to smooth the way and break ground for newcomers, as in any "good 'ol boy" network.
A-I heard Mr. Haskins, who by the way, is vice president of the National Urban League, speak at a conference dealing with "Alternatives to the Criminal Justice System". I give him high marks for the proposed mentoring program but not for what I heard him say at that conference in May of 1991.
He acted like an articulate scare monger, trying to put fear into the blacks in the audience by telling them whites wanted to keep them in jail. He said that "competency certificates" means you can get a job. "But who won't have them? African Americans!".
He said the SAT is weighed against the African American male. He told his audience that "Orientals are killing the SAT; these kids get 1400 on SAT scores and get the scholarships for minorities that should be going to black kids.
The federal government isn't going to rescue you (audience)." He said the gains that were made in the sixties and seventies are now "beat back". . ."If you ain't got it---you ain't going to get it, affirmative action has been kicked in the face." He called for a Domestic Marshall Plan to provide jobs for the inner city.
Q-I've heard the real problem today is not discrimination as much as it is the attitude that wealth can be taken for granted rather than produced by hard work. Everyone who isn't getting ahead blames it on bad breaks or prejudice, somehow never getting the message that even affluent well connected white males often don't make it if they fail to put in the time and energy required to succeed.
A-Our present society does a good job of avoiding the "double-t" words.
Q-Total taxes? Terrible taxes? Trendy taxes? Terrific Taxes? On that last one I'll give up, but I know they have something to do with taxes.
A-I wasn't trying to make you guess, but you are proof that no one even considers these "t-words" anymore-----toil and thrift.
Q-That is a novel pair.
A-Somehow the message has gotten out through the movies or TV that life is supposed to be easy and carefree; that it's inevitable tough times, setbacks, and frustrations are society's fault.
Too many people of all races, ages and genders have the idea that good intentions are enough and degrees and diplomas should confer immediate respect, prestige and power without the necessity of productive work. If they are forced to compete or struggle they figure something must be wrong with the system and that policymakers must be compelled to "fix it".
Q-Of course politicians don't help when arguing for spending for social programs they constantly proclaim that "This is the richest country in the world" and therefore it follows that health care, child care, housing, education, the elimination of homelessness and poverty, good highways and bridges, job training, jobs for everybody, higher minimum wages, better pensions all should be available to everybody at no cost to anybody. I sometimes think Americans think these things grow on trees in Uncle Sam's personal orchard.
A-When our political leaders, who should know better, indulge in this sort of nonsense, it is a disservice to the entire nation .
Q-Powerful congressmen have been compared to old plantation owners who are not ready to give up their power and the hold they have over their dependents. It will not be easy to emancipate those on welfare. Just as the plantation owners thought they were doing good for the people in their charge so do these congressmen who encourage dependency and exhibit so little faith in the people's ability to care for themselves and survive without government programs.
A-A perfect example of what you're saying occurred in the spring of 1991 when a delegation of black public-housing residents asked the Black Caucus to vote against a law requiring that only union labor be hired to do work on public-housing projects.
Ron Dellums, my old congressman from Berkeley, and all the Black Caucus voted with labor and against the low-income blacks to retain the bureaucratic pork-barreling Bruce Morrison of Connecticut was responsible for putting into the law.
Congressmen Jim Kolbe of Arizona and Dick Armey of Texas argued in favor of allowing public housing managers to hire low-income, hard-core unemployed inner-city residents to perform on-site maintenance in their own housing projects. Representative Armey said that public-housing tenants should be permitted to fix up their own apartments "to put sweat equity into their own homes, just as you and I do." He assured fellow members that private home owners quickly learn how to become part time handy persons.
Then Bruce Vento of Minnesota used the following argument in refuting Armey: (As reported in National Review June '90) "We have plumbing problems. We have electrical problems. We have carpentry problems that need to be addressed. Are the tenants that are living in assisted housing, are they the skilled mechanics that can take on these tasks of doing the electrical rewiring of a multi-complex housing unit? Are they the glaziers that will hang out there and put a piece of glass into a window? I think on its face it is obvious that they cannot do that."
Q-Some blacks have compared liberal white Democrats to missionaries. Mike Holt, editor of the Milwaukee Community Journal has written that they, "Control people of color with a smile, keep them impoverished, enslaved by welfare programs (which are run by other missionaries) and unwilling or unable to make a decision without our approval."
A-I wonder what he would say about Ron Dellums, Bruce Morrison and the entire Black Caucus?
Q-I wonder what you would say about the idea that black students need black role models; that black youths are disadvantaged unless taught by blacks?
A-I think you can tell by my opening comments that I believe people can communicate with one another even if they don't share identical experiences. I don't buy the idea that since black academics are shaped by life experiences unknown to whites, white professors are inadequate to the role of imparting information to black students. I realize there are black academic set-aside programs.
Q-In 1973 a federal court ordered HEW (Department of Housing Education and Welfare) to force the states to set goals for raising minority enrollments at predominantly white public colleges and universities.
A-If a school failed to meet goals in its state plan, the order stipulated that the federal government could cut off financial support.
Q-Some people think affirmative action programs on campuses do more harm than good . How do you feel about this?
A-Only about one third of black students graduate from the colleges that recruit them. The trouble is, minorities were recruited to satisfy federal mandates with no follow up support system to keep them from flunking out, so drop out rates were high.
Q-I think there was a 1985 study which showed that only 32 percent of Penn State's black students graduated after five years, compared with about 60 percent of its white students.
A-People catch on and resent being used. When Craig Thomas was a senior in high school, he was told by Penn State University recruiters that he would be admitted and would receive a scholarship that would pay 75 percent of his tuition for four years. Still he decided to go to the University of Houston because he felt Penn State accepted him only because he was black. He didn't like being used to fulfill Penn State's racial quotas.
Q-Isn't that the school that gives black students a .5 grade-point advantage over other students?
A-I'm not certain but the idea isn't surprising considering the prevailing attitude in academia in general at the moment. Another university pays black students $550 for maintaining a C average, and $1100 for anything above a C+ average.
On campuses affirmative action began as an ending of the preference for white males but took a wrong turn and became an exclusion of white males on the bases of their color and race. It should mean that no racial or sexual discrimination will work against an individual because he is a member of a minority group.
Q-Treating students differently because of their race used to be called discrimination. A 1985 survey in Public Opinion magazine found that more than 75 percent of black Americans were opposed to preferential treatment for blacks in hiring and college admissions.
A-Tell it to California Assemblyman, Tom Hayden who introduced legislation that urges all publicly supported colleges and universities to have, by the year 2000, a student body that is proportionately representative of the ethnic composition of recent high school graduates. This imposes a ceiling on every other ethnic group.
Q-Did you hear that the accreditation of Baruch College in New York was held up because the number of minorities on the faculty were considered inadequate and not enough minority students were graduating?
A-That's absurd. Minorities aren't the only ones that don't like racial quotas. These policies are just as likely to cause resentment by members of other races. In March, 1990, a state institution in Florida, in an effort to increase its low black enrollment, offered free tuition to every qualified black freshman. . Non-black Floridians rose up in anger.
Q-Q-Do you recall the flap about the Fiesta Bowl and race-exclusive scholarships in 1990?
A-Oh boy. First the Bush administration said race-exclusive scholarships were illegally discriminatory and the civil-rights lobbies went ballistic. Then the administration regrouped and said schools can award racially exclusive scholarships that are funded privately. This of course ignored Title VI of the 1964 civil Rights Act, the 1987 Grove City ruling which stipulates that all parts of a university are subject to civil-rights laws if any part receives federal funds and ignored the Constitution's guarantee of "equal protection".
Q-Did you read Carl Rowan's December, 1990 columns?
A-You mean the ones denouncing the Bush administration's "outrageous attempt to outlaw affirmative action scholarships" which he felt were only just and fair?
Q-That's what I meant.
A- In a splendid example of double-speak Rowan claimed scholarships for whites only would be a perpetuation of the pernicious racism some have practiced for generations, but for a college to set aside some scholarships for blacks, Hispanics or others, is a non-malicious effort to right 300 years of wrongs.
Q-George Will pointed out in a one of his columns written during that same time period, that the only remaining rationale for any civil rights lobby today is to expand the racial-spoils system. Equal has come to mean "preferential".
A-Just weeks after the scholarship flap the Supreme Court dealt civil rights what Mr. Rowan would consider to be another severe blow.
Q-You mean the Oklahoma City case?
A-Yes. That was a 5 to 3 decision in January, 1991 to allow federal courts to end supervision of desegregation plans if school boards have complied in good faith and eliminated the vestiges of past discrimination to the extent practicable. The ruling means school boards will have to prove in a court of law that they have met the standards.
Q-Does that mean schools that have once again become populated by primarily one race will have to be resegregated?
A-That's what the three dissenting Justices would have like to have seen happen but that is not what the court decision said. Chief Justice Rhenquist wrote "Federal supervision of local school systems was intended as a temporary measure to remedy past discrimination." He didn't take into consideration present or future discrimination which is bound to occur when he wrote that decrees are not intended to operate in perpetuity.
Q-All this concern about schools just goes to show how important education is, and I suppose always has been, to social and economic mobility.
A-There have been ill conceived policies to get minorities into college and ill conceived policies to get them out. Remember the 1986 incident at Howard University?
Q-I remember. The University granted degrees to nine students who failed to meet graduation requirements and even columnist Carl Rowan agreed that this was a disservice to blacks and ". . .to Americans everywhere who are fighting for opportunities based on achievement, potential and character."
A-In the California legislature during the summer of 1990, Speaker Willie Brown backed legislation that would require that minorities be graduated at the same rate as whites. Already they were given preference in admission to the state's colleges and universities, but apparently that was enough.
Q-That was Speaker Brown's response to statistics that came out in 1990 showing that graduation rates for blacks and Hispanics nationwide were fifty percent less than for whites.
A-Surely there is a better way to encourage minorities without resorting to paternalistic policies which assume they cannot achieve without outside help?
Q-What would you do about the college and universities that punish students for making remarks that are considered disparaging to racial and ethnic groups on campus?
A-I think restricting free speech where speech should be perhaps the most free, that is on college campuses, is a terrible mistake.
Q-The college administrations don't believe they are restricting speech.
A-Of course they believe it---they just call it "harassment" so nobody else will believe it. It is the essence of double speak. They try to claim that speaking ill of someone is not speech, it is conduct.
Q-I've heard the University of Wisconsin is one of more than a hundred colleges that has what is known as a "hate speech" code on all twenty-six of its campuses. But the Wisconsin code, and a similar one at Stanford are not in violation of the first amendment because only speech directed at an individual is actionable and not the idea expressed. Because of this they aren't effective in controlling "hate" at any rate.
A-At Oberlin College in Ohio students have divided into minute groups that have little interaction. There are separate residences and clubs for Asians, Jews, Latinos, blacks, feminists, gays, lesbians and subdivisions in each of these.
A-It is widely held that people of color cannot be racist because they lack power, but because whites supposedly have power that makes them intrinsically racist. Jacob Weisberg, an editor of The New Republic, during a visit to the Oberlin campus, reported that a group of white students responded to his question "Are you racist?" in the affirmative. Apparently they considered it part and parcel of their "white skin privilege" and felt that those students who didn't see it that way were simply "in denial".
Q-I read that report by Jacob Weisberg and was most bothered by his account of the trouble caused by two black women who were asked to leave the outdoor tables of a restaurant where they sat eating food they had purchased at a rival restaurant.
A-I found their indignation hard to believe also. They started boycotts and finally had the restaurant owner apologizing to all blacks over something that had nothing whatsoever to do with race. I feel so badly that young people, who should be getting an education and enjoying the company of fellow students of diverse backgrounds are instead squabbling among themselves and diverting their energies with divisive and destructive nonsense.
Q-Apparently the administration only makes matters worse.
A-I would agree. I was disturbed by the report of an anti-racism seminar required for some upperclassmen where the adult leader had everyone reciting things like "all whites are racist and only they can be racist." Students were not encouraged to be color-blind but rather they were urged to heighten their consciousness of race and take on the task that is required of every white person--- shedding throughout his or her entire life an "inherited racism."
Q-I would imagine such nonsense could do a great deal of damage to a sensitive white student. While white racism has not disappeared, all whites are not racist. How is such a thing tolerated at an American institution of higher learning?
A-Worse things than that are being tolerated. There is pressure to see that only blacks teach black subjects, Hispanics teach about Hispanics that no white should be audacious enough to tell a black or Hispanic student about his own history. This has been described as a form of apartheid or the idea that only a member of a particular race can think like or understand another member of that race. It has also been referred to as a "territorial attitude".
Q-Such expectations limit the choices of minority students rather than expand them.
A-The chairman of the African Studies Department at City College of the City University of New York teaches that the melanin in the skins of people of color make them more compassionate and communal in contrast to the white "ice people". On the same faculty is a philosophy professor who believes blacks are intellectually inferior and have an inherent propensity for crime.
Q-Have you heard the term "uniculturalism"? What does it mean?
A-It was coined to represent the opposite of "multicultural equality" which means the equality of various racial groups. Uniculturalism would be the holding of the various groups to one standard and it is a "no-no" on most campuses. Many multiculturalists see the slightest attempt to draw segregated groups together into a common American culture as a form of racism. They view differences as absolute, irreducible and intractable and abhor assimilation.
Q-What do you think about the trend to dump western civilization courses from university curriculums as irrelevant history of "dead European white males"?
A-The ideas upon which this country was founded and from which the writers of our Constitution drew their inspiration happened to be Western European ideas----they are the foundation of the United States of America. To find them irrelevant is to judge them on the basis of the race and sex of their originators rather than on their merit as ideas.
Q-I must admit the idea is scary. Do you think President Bush's educational-choice plan will promote racism? Many people believe that because white kids will be able to afford private schools more easily, the public schools will be left to the blacks and Hispanic children.
A-It is the poor and middle class kids that will be able to attend private schools if they choose to do so, thanks to "choice". They will benefit from the Bush administration's proposal far more than rich families will.
Q-What do you think of the trend towards all black schools? Isn't that resegregation ? How can it be tolerated?
A-In Milwaukee in 1990 tests in the cities integrated schools showed white students averaged 60 on a reading test and blacks averaged 25. A task force figured the schools were at fault and recommended an all-black school as an experiment. After all the idea for integrating the schools was to bring black children up to par.
Since that's not working something else has to be tried. The black schools are emphasizing values and a sense of community, something young black males especially are missing in their splintered home lives.
Q-They also emphasize African militancy. I guess there is no protection for whites, a majority group, against discrimination because surely by closing their door to white children, these schools are discriminating on the basis of race.
A-I hope you won't think I'm suggesting that higher education isn't important or necessary for the future of our country when I say I think there has been too much attention given to getting college degrees at the expense of others. What's the difference between telling a minority dropout he can't get a job without a high-school diploma or he can't get a job because of a racist white establishment?
With the best of intentions millions of dollars are lavished on anti-dropout campaigns that emphasize the hopelessness of life without school credentials when in truth so-called unqualified employees often perform better than their credentialed co-workers. Every close study has shown that diligence, determination, and the drive to get ahead are most important to productivity.
Q-All that Horatio Alger stuff may sound good but when less educated minorities are hired they often run into the problem later in the form of a promotion barrier as credentials generally determine who is to move ahead. A credentialed woman is often chosen over an aggressive and ambitious young man. Without advancement these academic drop-outs understandably become discouraged and withdraw from the work force altogether.
A-What really hurts is when an energetic and ambitious employee sees indifferent and lazy competitors gain promotions on the basis of credentials. This down-plays performance on the job and exalts effort on tests, resulting in, according to George Gilder, the protection of "any schooled but shiftless members of the middle class from the competition of unschooled but aggressively hardworking poor people."
Q-Couldn't education that is required for a specific position be given selectively to motivated workers right on the job or on the employer's time at another location?
A-Many companies have extensive training programs already because as certain jobs become more refined and specialized they must be learned on the work site with the equipment involved. Despite all the clamor to the contrary, the fact is the employment value of academic learning--beyond the three Rs--has increased very little.
Q-I believe that, because otherwise how could American companies go off shore and make use foreign unskilled labor? Uneducated peasants have done just fine at assembling automobiles, semiconductor chips, TV sets and all sorts of electronic equipment.
A-Unfortunately it's not a simple choice of using foreign unskilled labor or American unskilled labor. The U.S. government puts barriers in the way of production in this country whereas foreign countries that want the jobs for their citizens lay out the welcome mat.
Here there are constantly expanding licensing and other regulatory devices, sometimes pension and health mandated benefits, increases in the size and coverage of the minimum wage and generally making it harder and less profitable to do business in the United States.
When employers are forced to pay high wages for low-productivity jobs, they attract so many applicants that credentials, although they may be unnecessary for the job, become a convenient way to thin out the applicants. Street-sweepers, toll-booth personnel, construction workers, and truck drivers might be required to have high-school diplomas.
Q- Because most government jobs are grossly overpaid, the credentials are definitely overemphasized in federal bureaucracies. Everyone knows the tests for most civil service jobs are irrelevant to the actual job. But this is what happens when employers and employees are not permitted to function in a free market.
A-Exactly right. There are hundreds, if not thousands, of applicants for every fire fighter job that becomes available. Like any commodity the wages and benefits should be adjusted until there is only an adequate applicant pool. The glut in applicants wastes the time of countless people in testing and interviewing and takes the applicants away from other productive jobs. When such shenanigans are repeated daily all across the country it is bound to reduce the productivity of the nation---all in an effort to weed out even those who could do the job easily.
Q-Many blacks have found a haven in government work.
A-And many whites have found a haven in community work. There's one paternalistic policy which I would like to see abolished; that's the legal-aid programs which effectively pay white, middle-class lawyers to set up shop in poor ethnic neighborhoods and take clients away from the the minority lawyers in the area. Such programs give the impression that because minority lawyers charge for their services, they are taking advantage of their "own people".
Some people have suggested that it might be better to give the clients vouchers, good for legal services provided by the attorney of their choice rather than subsidize the attorneys directly. Proponents of this plan claim it would encourage minority non-government attorneys to take a community leadership role.
Q-I like the idea. In fact I think all voucher programs are meritorious in than they give low income people a chance to choose what they want rather than what affluent paternalistic whites think would be good for them. Already vouchers are used in education and housing programs--legal services would be a natural expansion.
Q-Did anybody seriously believe quotas would solve the problem of racial integration into society?
A-I don't think so. Even strong advocates, I believe, viewed affirmative action programs as merely a jump start --a temporary charge which would only be sustained by individuals within the group succeeding and taking on leadership roles within the community. As with immigrant groups that gathered in ghettos in the past, the success of the group depends on the successful individuals investing in the old community and providing jobs and economic opportunities for others.
Q-That's what we were saying earlier about the need to encourage strong leaders within the minority communities instead of encouraging them to rely on government subsidies and the goodwill of patrons?
A- The first black graduate of the Harvard Business School was a guest on the June 7, 1985 Phil Donahue Show. The point was made that blacks are entering but not going anywhere within the large corporations. It was agreed that preferential treatment is not a substitute for competency. Someone suggested that affirmative action was a "free deal". Blacks in the audience believed that in general blacks are better qualified for opportunities than are whites. They said they "have to be"
Q-I heard that on the faculties of lots of universities and colleges blacks out-earn comparable whites. Is this true?
A-It may be true outside the South for those with top credentials. Earnings-capacity-utilization studies have shown, however, that academics and doctoral scientists and engineers who earn slightly more than whites, tend to work as hard if not harder than their white counterparts.
Q-"Earnings-capacity-utilization studies"? You sound like a recording!
A-Sorry. But by the terms of most affirmative action programs, qualifications are incidental.
Q-It's little wonder that many of those who see these programs as free rides want to share in the benefits and even go as far as to fraudulently claim minority status to do so.
A-Unfortunately the affirmative action programs have become one more government enticement to dishonesty. Cheating and lying to qualify for government benefits has become all too common. Someone was said to have traced his ancestry back to the time of the Inquisition in Spain to show that he was descended from expelled Jews and therefore an Hispanic entitled to special favors in the United States of America in the 1990s.
Q-It has been suggested, in jest of course, that the way to implode the system is for everyone to fill out their forms with an incorrect ethnic group.
Q-Forget the jest----I know a white male who was trying to break into the commercial aviation field and said he always checked that he was an American Indian so the EOD (Equal Opportunity Department) would be flagged and go to bat for him. He saw it as a harmless push for an otherwise honest and deserving person who simply wanted to get ahead.
A-In today's world of spin doctors and phoney baloney, if quotas are referred to as quotas they are considered to be illegal but if they are called goals they pass muster.
Q-It looks like the same politicians who substituted harassment for speech are now giving you goals instead of quotas.
A-Double-speak is something that most politicians have mastered. They know they can confuse and sway opinion by prefacing their remarks with phrases such as "Honest Americans know. . .", "Americans of all political stripes still care for justice" or "We shouldn't be going around narrowing in a mean-spirited way. . .it's sort of the decent thing to do".
Q-Well, that's one side of the equation, but many blacks maintain they are not given the same flexibility to mess up as whites.
A-Wouldn't you agree that if racial discrimination were the determining factor in the low rate of upward mobility of black Americans, then West Indians should have the same high unemployment rates, school-dropout rates and teenage pregnancy rates that other blacks experience.?
Q-What are you getting at?
A-Unemployment among West Indians is lower than the national average and percentages of them who are successful in business and the professions surpass the percentages of many white ethnic groups. Their success contradicts the claim that the dismal situation of black Americans is largely due to racial discrimination.
Q-It's interesting that Jews and Asians are minorities that are not given breaks when it comes to job and educational opportunities because as a group they have already achieved success.
A-What I find even more interesting is the suggestion by Eldridge Yehuda, chairman of Afro-Americans for Reparations, that the U. S. government owes blacks about $4 trillion dollars and blacks should withhold tax payments until the government pays up.
Congressman John Conyers Jr. of Michigan has introduced legislation similar to the bill which resulted in reparations payments to Japanese for their interment in camps during World War II. His legislation calls for an examination of slavery and its impact on present day descendants of slaves and compensation for injustices.
Q-If you look back you can make a case for paying damages to every ethnic group in the nation. Discrimination and hardships have been the lot of every race at one time or another. The solution is to look to the future rather than trying to blame and make someone pay for circumstances that are unalterable.
A-Traditional black politicians rallied supporters by concentrating on emotional concerns such as racism, police brutality and inadequate housing and health care. The cry was to soak the rich and the corporations via new taxes and social programs.
However so-called protest politics have become too polarizing if a black hopes to attract white voters. The new themes are fiscal prudence, managerial competence and law and order.
Seattle's black mayor, Norman Rice has involved himself in white issues like slow growth vs. developer problems instead of gang violence, drugs and homelessness which matter to his relatively small black constituency.
A-Soon this may not be possible even in areas like Seattle because by 2020 the number of nonwhite U.S. residents will have more than doubled to nearly 115 million, while the white population will not be increasing at all. Once this country was a microcosm of Europe; it is fast becoming a microcosm of the world.
By 2056 the average U.S. resident will trace his or her lineage to the Hispanic world, the Pacific Islands, Asia, Africa, Arabia or almost anywhere except Europe. Indians began coming here in considerable numbers in 1965 and their population has increased by over 180 percent in the last ten years. However, most Indians are highly educated when the immigrate to this country.
Already in the state of New York 40 percent of public school students are ethnic minorities, whereas in California white students are already the minority.
Q-Isn't that because many white children are enrolled in private schools in California?
A-True, but that doesn't change the fact that whites of all ages now make up only 58 percent of California's population.
Between 1980 and 1989 the Hispanic population grew by 39 percent compared to the growth in the total population of 9.4 percent. Less than one quarter of Hispanic three and four year olds were enrolled in preschool. Los Angeles offers salaries as high as $33,000 for first-year bilingual Hispanic teachers which is several thousand dollars more than Anglo teachers make. Hispanics account for 31.4 percent of public school students, blacks amount to 8.9 percent with Asians and others totaling 11 percent making a nonwhite population of 51.3 percent. As affirmative action has broadened to include other groups, blacks see that it offers less value for them.
Q-I thought I read somewhere that the drop out rates for Hispanics was really high.
A-That's right. In 1989 the average dropout rate for all U.S. students was about 12 percent, but for Hispanics it was closer to 32 percent. A report based on the most recent census found that 78.7 percent of Hispanic 16-17 year-olds were in school compared to 91.6 percent of the total population. School completion dropped for those ages 18-24 from 62.9 percent in 1985 to 55.9 percent in 1989.
Q-I guess the parents don't reinforce the importance of education the way stereotypical Asian and Jewish parents do.
A-In 1988 25,000 Ph.D.s were awarded to Americans but only 358 went to blacks. We need to get black and Hispanic kids to take math and science courses rather than social or ethnic studies.
Q-Some Hispanics understand that education is a way to escape poverty and despair but even so they are often intimidated by the system and have other priorities.
A-That's very true. In the eighties Hispanic families began breaking down at a fast rate. The old stereotype of Hispanic families as close-knit and headed by hard-working parents devoted to their children is no longer universal. About one third of Hispanic youths between the ages of 12 and 17 live in single-parent households, according to census figures, and some are themselves heads of households.
Q-Besides those problems, legalized aliens began moving onto welfare in distressing numbers. Hispanics were increasingly adopting a posture of confrontation with the government seeking help in the form of subsidies and minority status.
A-During his commencement address at West Point in June, 1991 President Bush spoke about the need for citizens to "think of ourselves not as colors or numbers but as Americans, as bearers of sacred values."
Q-The original civil rights movement was based on the notion that in America everyone should get a fair shake. The ideal has been twisted in the nineties to require preferential treatment for people who fall into certain classifications, based on conditions unrelated to merit.
A-I agree with Senator Paul Simon who argued from the Senate floor on July 10, 1990 that, "The great division in our society is. . .between people who have hope and people who do not have hope." I do not agree that reversing court decisions gives hope.
Q-What does give hope?
A-Education, protection against crime, strong families, good role models, encouragement and honest accomplishment through hard work. As we have seen, too many black Americans are concerned about the breakup of the family, about jobs, schools and crime; they feel locked out and that is why civil rights legislation is, if nothing else, a symbol of hope, a sign that the nation cares.
Q-Why do you think President Bush vetoed the 1990 Civil Rights Act?
A-President Bush wanted to sign civil rights legislation but not a law that would punish businessmen for unintentional and hard to define discriminatory employment practices. The 1990 legislation sponsored by Senator Edward Kennedy and Congressman Augustus Hawkins would have made businesses justify the validity of virtually all of their employment practices in its attempt to make it easier for women and minorities to bring suit.
Q-Wasn't a cap put on damages in a discrimination lawsuit?
A-Shortly before President Bush vetoed the 1990 Civil Rights Bill Representative Hawkins enumerated a list of changes made in the legislation at the last minute in an attempt to save it.
One of the changes was an agreement to limit punitive damages awards against employers with fewer than one hundred employees to $150,000 or the sum of compensatory damages and other equitable monetary relief, whichever is greater. Hawkins lamented the loss of "hundreds of meritorious employment discrimination cases (which) have been dismissed in the past year as a consequence of the Supreme Court's decisions", which he referred to earlier as "the Supreme Court's recent misinterpretations of federal civil rights laws."
Q-I don't understand the women's issue here?
A-Under the amended 1991 civil rights law (H.R.1), racial minorities who are victims of discrimination can sue to recover damages for medical and emotional injuries or to punish offenders, but women are only allowed to sue for back pay and reinstatement to a job, and they have no right to a jury trial. Most of the congresswomen attempted to pass an amendment to H.R. 1 which would have allowed women the same right to compensatory damages as the final proposal allowed minorities. They argued that companies need to be hit hard in the pocket book or they won't change.
Q-But if women were allowed to sue for compensatory and punitive damages wouldn't there be more lawsuits?
A-Many think so. Victor Schachter, a San Francisco business attorney cites California's experience after compensatory and punitive damages became available in 1980 in wrongful discharge cases. The average jury verdict in such cases in 1987 before the state Supreme Court limited such damages was $482,697. Quite a burden to get businesses to behave in a nice manner.
Q-Someone said "comparable worth" with a bureaucracy to establish wages was part of the recent proposed civil rights legislation. Is that true?
A-So-called "pay equity" bills were passed in the House during the 98th., 99th., and 100th congresses but that is as far as they got on their journey towards becoming binding law. In fact Section 202 of the civil rights legislation that was passed by the House in June of 1991 had a comparable worth or pay equity provision slipped in to attract women, but no provision for a bureaucracy to establish wages even though it was called the Civil Rights and Women's Equity in the Workplace Act.
Q-What prompted the 1991 bill anyway?
A-A series of Supreme Court decisions culminating in 1989, made it harder for workers to prove they were victims of job discrimination. Documented disparities between employment patterns and the make up of local populations were once considered sufficient to create a presumption against the legality of employment practices that have a disparate impact on various groups. Then the court changed the burden of proof so that mere statistical imbalance would not automatically mean that plaintiffs would prevail.
Q-This meant that hiring practices could be invalidated only for discriminatory motives or for statistical consequences that could not be explained by legitimate business considerations such as hiring or promotion by merit.
A-Right. But since this is difficult to prove, proponents of the new legislation argue it is wrong. They would love to be able to offer plaintiffs' successes as the proof of justice.
Q-And I guess they would be happy if employers started practicing a little reverse discrimination as insurance against ruinous litigation.
A-But one good thing, they want to shift the burden to make employers prove a disparate impact is related to effective job performance. Originally the burden was to prove it was essential to effective job performance.
Q-Either way employers are forced to protect themselves, and as we've said over and over, the best way to do that is hire by the numbers which is essentially adopting quotas.
A-From where I sit, litigation is a game of chance that costs the employees little to find out if they are winners and leaves the employer with the responsibility of paying off perhaps by liquidating his life's work.
Q-What do you say to claims by the bill's sponsors, that neutral employment practices work to create a "statistically unbalanced workplace" in terms of race, sex and religious orientation?
A-Hoover Institution fellow Thomas Sowell counters that nonsense to my satisfaction in a piece he did for the Wall Street Journal published March 6, 1990 : "The fatal fallacy of affirmative action policies is to assume as a norm a condition of even or random distribution of groups that is seldom if ever found on the planet."
The assumption that different racial or ethnic groups would be evenly or randomly represented in institutions "but for" discrimination is unsupported by evidence. Sowell uses an abundance of statistics to back up his contention that imbalances are common all around the world. He claims disparate impact occurs whenever racial, sex or other statistics fail to meet the preconceptions of policy makers.
Q-It looks like disparate impact is one more example of double-speak.
A-And there's no doubt disparate impact is at the heart of the legislation. The 1990 civil rights act would have penalized employment practices that have a disparate impact upon blacks as compared with whites.
Opponents argued, successfully I thought, that disparities are bound to exist unless at some time in the future occupational slots are assigned at birth by sex, race and religion. The disparate impact tests would force employers to make certain their employees were balanced by religious sects. It would have been dangerous to require workers to have high school diplomas and in general made it more difficult for employers to set high standards in this competitive world.
Q-Didn't the Court's ruling hinge on how applicant testing and job qualifications related to the actual work required by the job?
A-The court ruled that such requirements must be significantly related to successful job performance, must fulfill a genuine business need and have a manifest relationship to the employment in question--business necessity was the key!
Q-That's what I was talking about. The term business necessity was vaguely defined so that employers, in order to protect themselves from litigation, would be forced to hire anyone who could do a successful job as opposed to hiring the best possible worker.
A-On top of all that, the Act was said to be a bonanza for lawyers as it tended to encourage litigation.
Q-How did it encourage litigation?
A-The legislation was too ambiguous and set aside past precedents. Even the lawmakers themselves couldn't agree. Senator Kassebaum admitted it was unclear whether or not it would actually lead to a quota system and Senator Jeffords said there was disagreement on the degree of discrimination to be permitted regarding business necessity.
Opponents claimed that employers would hire by the numbers, which ipso facto amounts to a quota bill, because of the fear of being sued. Senator Jeffords asked, "What should business be allowed to get away with under the guise of business necessity?"
Q-Did the parties disagree on who should have the burden of proof in civil rights cases?
A-Both sides want to shift the burden of proving "business necessity" to the owner. The administration would like to define "business necessity" as showing a manifest relationship to employment or practices which have legitimate goals, whereas the majority of Democrats want to see proof of a significant relationship. The administration is afraid employers won't be able to hire to achieve "optimal performance" and the Democrats are afraid all sorts of things could be justified as "legitimate goals" . .
Q-Do you prefer one point of view to the other here?
A-I think both the Republicans and the Democrats are completely off base.
Q-Why?
A-Neither advocate a color-blind society, which I see as the only way to achieve harmonious relations among various groups in this country.
Q-That would be "on base" in your view?
A-Absolutely. The 1990 and 1991 proposed amendments to the 1964 civil rights act would amount to quota bills because a prudent employer would favor minorities in order to avoid costly lawsuits.
Q-What can you say about the Senate version of the 1991 civil rights bill?
A-The Senate bill is not that different from the House bill. It too is an attempt to strengthen civil rights laws that prohibit discrimination in employment by negating several 1989 Supreme Court decisions.
The participants in our dialogue have been discussing recent civil rights legislation. What are the origins of some of these proposals?
Q-Is there some way you could give a very brief rundown of the cases the new legislation hopes to overturn and why?
A-Very briefly I'll mention the reason politicians want to overturn each of the following cases:
The Patterson case dealt with businesses with less than 15 employees and didn't ban racial harassment on the job nor prevent discrimination after a contract was made.
Wards Cove said it was up to the employee, not the employer, to prove discriminatory business practices are not significantly related to a legitimate business objective.
Hopkins ruled it was ok if prejudice enters into employment decisions as long as the decisions would have been the same without discrimination.
Wilks said a potential plaintiff who sits on the sidelines could later challenge a consent decree settling a job discrimination suit in a separate lawsuit later.
The Lorance case held plaintiffs have to challenge discriminatory practices when they occur not when the harm begins.
Crawford and Zipes cut back on fees available to prevailing parties.
Q-The ruling in the Wards Cove case, the case I'm most familiar with, was 5-4 in favor of imposing tougher standards on employees in their use of statistics to prove discrimination. The Court in essence said workers must bear the burden of discrediting the employer's justification for hiring practices.
Senator Gorton saw the same relevance you see in the Wards Cove ruling and asked regarding "business necessity", "Should courts penalize employers who have no intention whatsoever to discriminate as in the Wards Cove case?" He claimed the bill was not about whether people will get jobs but rather on what basis shall people get jobs. On the basis of race, religion, sex?
A-In the 1971 Griggs ruling, the Supreme Court said if some hiring practices have a "disparate impact" on minorities ---that is if they result in statistical underrepresentation of minorities or women--they must be justified by " business necessity"
Q-And how is "business necessity" defined?
A-According to the proposed 1991 amendments, it must be a hiring practice which bears a significant and manifest relationship to the requirements for effective job performance.
Q-How is "significant" and "manifest" determined and what constitutes "effective" performance?
A-I think these are the same questions we tried to answer earlier and this discussion proves the point that opponents of the legislation make, that this legislation is a lawyer's dream---all these terms are open to interpretation and must be proven. As Charles Stenholm, Democratic Congressman from Texas, argued in his opposition to the Brooks-Fish amendment to the 1991 civil rights bill, "'manifest' and 'significant' will become big things."
Q-I guess the degree of difference in those two terms relates to the degree of difficulty an employer would have in proving he was not practicing discrimination.
A-Politicians of both parties rely on Griggs and want to overturn, by legislation, the Supreme Court decision reached in the Wards Cove case.
Q-That ruling made it more difficult for workers to prove racial discrimination simply by citing statistics that show that a group is underrepresented in a work force and put the burden of that proof on the plaintiff employee.
A-In our society, an individual's worth has a higher moral claim than his color, religion, gender or origins. The goal of the 1964 civil rights act was to ensure that employment decisions would be made on the basis of qualifications rather than on criteria such as race and sex--the 1991 proposed amendments ensure just the opposite. If the 1991 civil rights amendments are passed sex and race will be part of every employment decision!
Q-Is it possible to favor affirmative action and oppose reverse discrimination.
A-Poll after poll shows that is what the American public does, although in actual effect, affirmative action leads to reverse discrimination!
Q-Does Wards Cove lead to a color-blind society?
A-Not at all. Color-blind demands that race (sex, age, ethnicity, religion, disability) not be considered in decisions about the suitability of people but that they be judged by their qualifications and the "content of their character".
Q-Former secretary of Health and Human Services, Joseph Califano claims former President Jimmy Carter asked staff members to review the work of subordinates, and "get rid of all who (were) incompetent, except minorities and women." What do you think about that?
A-That's proof that Jimmy Carter was definitely not a color-blind president but there's ample proof that George Bush is not color-blind either. In the spring of 1991 President Bush reportedly wrote to Senator Bob Dole asking him to make a special effort to find female, black and Hispanic candidates for federal judgeships.
Q-Didn't a Texas congressman propose the winning amendment to the 1991 civil rights bill----the one that took effect out of the three presented in June?
A-It didn't take effect, it just became part of the legislation. Probably no part of the 1991 civil rights legislation that passed the House will take effect because President Bush has threatened a veto and it takes 277 votes to over ride that veto and the bill only received 273 votes.
Q-Who was the Texas sponsor that I heard about?
A-Jack Brooks, starting his twentieth term in congress. He actually proposed the civil rights bill as H.R.1 on the opening day of the 100th Congress as well as the amendment later on. He introduced his amendment saying, "Civil rights is important in the American experience because it is this society's most visible reaffirmation of our continuing commitment to the Bill of Rights. The debate over the nature and extent of that commitment is a valid and necessary one if we're going to pursue the twin pillars guaranteed by our Constitution; that of individual opportunity and individual liberty; neither can be permitted at the others expense."
Q-Those are high sounding words.
A-As long as you don't look behind them to the legislation that curtails "individual liberty" for employers and decreases "individual opportunity" for employees. I wanted to share the words with you after you've heard what the legislation is all about.
Q-If lawmakers can't agree on whether it is or isn't a quota bill how can the average citizen be expected to know the truth?
A-In debating the 1991 civil rights legislation on the floor of the House, a New York congressman pointed out that he was not an attorney and since the legislation specifically denied being a quota bill, "I've got to believe it." I was shocked. To think you must believe something you are told without further investigation simply because "I'm not an attorney" is mind boggling. Not only that, this congressman went on to suggest that all small business persons across the nation who are not attorneys must become "believers".
Q-That sounds like the old snake oil salesmen who were so found of saying, "Take my word for it".
A-I would advise New Yorkers in that congressman's district to first of all realize themselves what practical effect the law would have in society and that requires some knowledge of human nature, and then to get a congressman that knows something about how people act.
People act in their own self interest. No matter the denials in the civil rights legislation debated in the first week of June, 1991 the fact is employers would find it in their best interest to hire employees "by the number" (quotas) in order to have a defense to present if and when charged of violation of the legislation.
This law placed the burden of the proof on the employer---guilty until proven innocent---scary in itself. The best proof of an employer's innocence is primae facie evidence; that is on the face of it the evidence shows he has the "correct" number of representatives of each race, sex, age, and handicapped segment of the population in his employ. That is in his best interest if this legislation were to be passed.
Q-Everyone says there are too many lawyers in congress, but the non-lawyer in this instance deferred to those colleagues who were members of the bar. I don't get it!
A-Lawyers are trained in logical thinking but unfortunately logic is not evident in most congressional debates. Perhaps it would be a good idea to compel some continuing education for members of congress. Just as real estate professionals, accountants, doctors and so forth must show proof of courses keeping them current in their field, how would it be if we were to require congress persons to show evidence of having attended a psychology, or history course twice a year so they would take into consideration the effect legislation is going to have on constituents and to realize they are often encouraging citizens to cheat and steal to get around unjust and oppressive legislation.
Q-I remember in your book on social security you said a congressman in the early 1980s had carried on about the changes in cost-of-living-adjustments (colas) over the past twenty years, apparently unaware that colas didn't take effect until 1975!
Q-Did you happen to see Bob Dole's appearance on "Meet the Nation" on June 6, 1991? He admitted the Danforth bill gave employees the right to sue but put the burden to prove a case back on the employees where it belonged. He seemed to think it was a good compromise and it looked like he might vote for it.
A-As minority leader, Senator Dole was in a tight spot. He felt President Bush's proposal would fail in the Senate as it did in the House and that Senator Danforth's bill might be an alternative.
Q-It sounds like you were convinced the 1990 Civil Rights Act was a quota bill.
A-I'm absolutely convinced it would have affected business as if it were a quota bill. The legislation was written so that a disgruntled employee would not need to prove that any specific practice by the employer resulted in dismissal due to discrimination. The burden was shifted by this law, to employers who must in all instances prove their innocence. This shifting of the burden of proof to the defendant would be a turn around in American jurisprudence.
Q-That may be, but didn't Senator Arlan Specter, in defending the legislation, claim an affirmative defense is well recognized in American jurisprudence and that it was perfectly fine to have an employer forced to prove "business necessity"?
A-Don't get me started on Senator Specter! Rather than be spending all their time in courts businesses would simply have instituted a quota system and/or lived in fear of costly litigation which would have hurt our domestic economy and world competitiveness. If that legislation had become law it would have been tantamount to malpractice for lawyers to fail to advise employers to hire strictly by the numbers. The surest way for employers to avoid lawsuits would be to hire those who are minimally effective which would not be good for their business nor the nation's economy.
Q-Well I bet you agreed with Wyoming's Senator Alan Simpson?
A-Senator Simpson resented the fact that if you failed to support the bill you would automatically be labeled a racist. He called it a vicious innuendo and denounced the legislation as an attempt to micromanage the nation's employers. If you can get into court and be sued by the numbers you'll naturally end up hiring by the numbers. That's a quota bill.
On the other side, Senator Metzenbaum of Ohio used some fancy double-speak and called it a jobs bill. He said you ought to be able to work instead of going on welfare. "If you believe people should be working you ought to be for this bill."
Q-It sounds to me like the risks in hiring employees would be so great that if anything, the bill would result in less jobs.
A-Obviously----and Senator Metzenbaum is an attorney and not ignorant of the ramifications. I don't understand it. It's like he doesn't really care about the effect it would have on the people he so erroneously claims it would help.
Q-Naturally Congress exempted itself from the legislation because, as Senator Rudman put it, congress would be subject to the whims of a U.S. district court judge who "would have the power to overrule the considered judgments of 100 members of this body."
A-Of course it's ok for a judge to overrule the considered judgments of thousands of executives of corporations and manufacturing firms across the country. I believe passage of any one of the civil rights bills and their various amendments as proposed in the early nineties would actually separate the country by making specific classes of people into permanent wards of the government.
Q-How did this quota idea start anyway?
A-It can be traced back to 1965 and President Johnson's executive order #11246 which expanded upon a 1941 executive order prohibiting discrimination by defense contractors during the second world war. Executive order#11246 prohibited discrimination by any federal contractor and required contractors receiving federal monies to keep records on minority employment and to adhere to goals and timetables showing that the contractor was eliminating imbalances in hiring and to show good faith efforts were being made to meet those goals.
Q-First it covered defense contractors and then it was expanded to federal contractors and any contractor receiving federal money. That's interesting.
A-No one alive today would be surprised to know that these mandates resulted in tons of red tape with time squandered under piles of paperwork. Resentment grew.
Q-It sounds to me like executive order #11246 was more a call for strong steps to eradicate discrimination than for race-based favoritism.
A-It wasn't until the seventies that many civil rights activists switched their focus from equality of opportunity based on a color-blind theory, to equality of results which is a highly color-conscious notion that weighs the relative achievements of various racial groups.
Q- Didn't the Nixon Administration shift to a numerical approach in deciding whether contractors were in compliance with Exec. Order #11246?
A-Yes, you're right, that's what really got the quota idea going.
Q-What about the cases that challenged quotas claiming reverse discrimination?
A-They arose in the seventies to challenge the solutions that were proposed as remedies for "past effects of past discrimination". I guess those could be fairly traced to 1954 and the Brown vs. Board of Education case in Topeka, Kansas which ended in an order to integrate the schools.
Q-If I'm not mistaken, the Court found using race-conscious and numerically based remedies was often the only practical way to desegregate the schools.
A-Then there was the 1964 Civil Rights Act Title VII in which schools were ordered to bus children and employers were order to hire on the basis of race. The rationale was "remedy for present effects of past discrimination".
Q-I associate 1964 with California's Proposition 14. Do you remember that?
A-That was an initiative to amend California's constitution and nullify the Rumford Act. The amendment was suppose to allow people to sell, lease and rent property with absolute discretion.
Q-The 1963 Rumford Act, if I remember correctly, superseded the Hawkins Act which had prohibited discrimination in publicly-assisted housing. Rumford covered discrimination in all housing. What I don't remember is the fate of Proposition 14.
A-In a 5-4 decision the Supreme Court demolished Proposition 14 claiming it "expressly authorized and constitutionalized the private right to discriminate." (Reitman v Mulkey 1967)
Q-Now California's civil rights laws and sanctions against discrimination in housing and employment all predated similar updated federal laws. Am I right?
A-The ones in the same decade. California had civil rights laws prohibiting discrimination in specific public places written into its civil code but they were reformed and incorporated into the Unruh Civil Rights Act in 1959. That same year the California Fair Employment Practice Act took effect. It declared, "The opportunity to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry or sex is hereby recognized as and declared to be a civil right." It didn't apply to private sector employers unless they regularly employed five or more employees.
Q-Since California had laws specifically covering discrimination in housing and employment, what did the Unruh Act cover?
A-I guess it would be a flippant to say "everything else"? The act specified Negroes were ". . .entitled to full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever."
Q-Then it did cover discrimination by private persons.
A- "All business" was further defined by saying, "Those who perform a significant public function may not erect barriers of arbitrary discrimination in the market place."
"Public interest" and "significant" are key words in determining whether or not government interference is warranted in person to person relationships.
Q-Unbelievable! The issue of public encroachment upon private interests was settled way back in 1893 (Lawton v Steele) when the Supreme Court upheld a state statute allowing officers to destroy nets used in illegal fishing. The precedent was set that the public's interest must require the interference and that interference must be reasonable to accomplish the purpose.
A-The federal Civil Rights Act of 1964 covered seven areas: (1) voting in federal elections (2) public accommodations (3) publicly owned facilities (4) school integration (5) continued the Civil Rights Commission (6) federally-assisted programs (7) employment---it established the Equal Employment Opportunity Commission.
Q-It wasn't until 1968 and the Fair Housing Act that federal law prohibited discrimination in housing.
A-That was Title VIII and IX of the 1968 Civil Rights Act which may not have been needed.
Q-Why do you say that?
A-In that same year, 1968 the Supreme Court decided a housing discrimination case on the basis of an 1866 statute. In Jones v Mayer (1968) the Court said: "At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep."