Taking a Stand on Civil Rights A Dialogue

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. A brief look at where we are currently 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 two and a half million Black males age sixteen to twenty-five. According to the 1990 census, 647,000 are in high school, 351,000 are in college, 163,000 are in the military and a million are gainfully employed. Q-But what about all the young Black males that arent gainfully employed; those that want to be working and can't find jobs? A-I refer you to the arguments used to fight the minimum wage laws. Unfortunately the high unemployment rates among young and entry level workers, Black and White, are proof of their validity. Q-Hasnt unemployment gotten worse among Black males? A-Youre right if you consider that 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 twenty-five percent of Black males in this age group derive their income from illegal activities. If you figure in illegal activities, the employment rate really didnt declined that much over those twenty-three years. Q-In other words, legitimate employment is down but illegitimate is up. A-That wasnt my point 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 even if racism were eradicated tomorrow. Q-I asked a group to assign the following numbers to Blacks, Hispanics and Whites in their twenties and in prison. One in four, one in ten and one in sixteen. A-That was a no brainerhighest was Blacks, lowest was Whites leaving one in ten to the Hispanics. I knew that in 1990, just last year, the highest cause of death among Black males ages fifteen to twenty-four was violence. Q With drug pushers as role models so what do you expect? Fifty-one percent of Black families with children under age eighteen are headed by single mothers.. A-Are you familiar with William Raspberry? Q- Yeah. Hes a columnist.

A-I heard him admonish 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 lately. A-The poverty rate of children in Black single-headed families is almost fifty percentin 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. A- Yeah but child poverty appeals to the emotions of the listener better than speaking of family poverty. Also its 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 statisticsyou 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 first ask if this course of action offers individuals more freedom, flexibility and opportunity. Q-At least our civil rights legislation guarantees representation even if it hasnt completely eliminated discrimination. A-John Bunzel spoke 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-Who is John Bunzel? A- Hes a fellow at the Hoover Institution and a former college president and member of the U. S. Commission on Civil Rights. I heard him speak before the Commonwealth Club in San Francisco on April 19, 1991 and I memorized that line. Have you heard of George Gilder? Q-Sure. While researching his 1982 book Wealth and Poverty, George Gilder found that college educated and professional Black women earned twenty-five percent as much as their White counterparts. A- In other words they earned seventy-five percent less. Q-There was also a study by Bennet Harrison of MIT and consultant Lucy Gorham claiming that 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 highlevel positions at a rate more than three times as fast as Black men did. Q-For a guy who doesnt believe in statistics you sure recite them a lot. A- Numbers don't shed much light unless you take the time to look in, around, behind and under them. From a historical perspective George Gilder did uncovered an interesting set: Beginning with incomes around fifty percent of the incomes of Black men and fifty-seven percent of the incomes of White women, Black women ended the period by earning more than eighty percent of Black male incomes and ninety-nine percent of the White female level...by 1969 there were sixteen 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. 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 eighty percent that of Whites

A-The fact that in 1980 Blacks in New York City were earning almost two and a half times what Blacks were earning in Mississippi lends credence to the geographic proposition. And he backed up his theory about age by pointing out in 1980 that families headed by twenty-two year old, White and Black, had median incomes about $5,000 less than families headed by thirty-three year olds. Q-Still everyone points 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-The ones we just discussed; the disintegration of the Black family, lack of good Black role models, demographics and geography. Q-What do you mean, demographics? A-The difference that age makes. We just said the median age of White Americans is thirty-two and its twenty-two for Blacks. Young people are more inclined to commit criminal acts. Q-Got it! Ill change the subject if you dont mind. A- Be my guest. 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- Right. 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 doing well 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-Correrct, but the Congress over rode 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 newcomersthe code word for racial minorities. Q-I suppose 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-Yes. 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- Yeahthats it. I guess I really want to know how the Democrats captured the Black vote since I would think they would owe the Republicans since they were the ones, under Lincoln, who freed them. A-Allegiances switched over time. 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 1980and 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 one thousand 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 fifty thousand or more rose from 212,000 to 764,000a three hundred and sixty percent increase, having doubled between 1982 and 1987the Reagan years! The total income of America's twenty-eight million Blacks was two hundred and thirty-seven billion dollars, 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-Thats 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 twelve percent of prime-age Black males were unemployed compared to only

five 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 poverty 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, leads back to the 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. In the last twenty years the number of Black households headed by married couples has fallen almost twenty percentage points. It dropped 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.

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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 nonemployed 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 programsto the extent they make the mother's situation bettertend 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

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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, and 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.

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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 to the high proportion of Blacks in poverty. Are there any ways to help 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 having a competency certificate 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 ityou 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-And even if they do do everything right theres no promise of success in any one endeavor. As the license plate says: Stuff Happens. One thing our present society does a good job of is avoiding the double-t words.

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Q-Let me guess. Total taxes? Terrible taxes? Trendy taxes? Terrific Taxes? On that last one I'll give up, but I know double Ts must 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-I tend to agree. Our political leaders do a disservice to the entire nation when they entertain this sort of nonsense. 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. I suspect it makes them feel superior to think that regular citizens couldnt survive without their 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, along with the entire Black Caucus, voted with labor and against the low-income Blacks to retain bureaucratic pork-barreling. Bruce Morrison of Connecticut was the most visible backer of this unfortunate legislation.

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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: 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 multicomplex 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. National Review June 1990 Q-Some Blacks have compared liberal White Democrats to missionaries. Mike Holt, editor of the Milwaukee Community Journal has written that they, meaning the federal government Control people of color with a smile, keep them impoverished, enslaved by welfare programs 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.

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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 so drop out rates are high. Q-I think there was a 1985 study which showed that only thirty-two percent of Penn State's Black students graduated after five years, compared with about sixty 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 seventy-five 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 $1,100 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 seventy-five 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?

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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 offered free tuition to every qualified Black freshman. It was an effort to increase its low Black enrollment. Floridians rose up in anger. Q-Q-Do you remember 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- I think Carl Rowan wrote a column at the end of 1990 on this subject. A-You mean the one 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 three hundred years of wrongs. Q-George Will pointed out in 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. He claimed that equal had come to mean preferential. A-Just weeks after the scholarship flap the Supreme Court dealt civil rights another severe blow. Q-You mean the Oklahoma City case? A-Yes. That was a five to three decision in January, 1990 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 become populated by primarily one race will have to be resegregated?

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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 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 back then 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-Oh yeahthat was Speaker Brown's response to statistics that came out that year 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-Heres another aspect to consider: What would you do about the colleges and universities that punish students for making remarks on campus that are considered disparaging to racial and ethnic groups? 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 itthey just call it harassment so nobody else will believe it. Its 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 have what is known as a hate speech code on all twenty-six

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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 level. 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. During a visit to the Oberlin campus Jacob Weisberg, an editor of The New Republic, reported that a group of White students responded to his question Are you racist? in the affirmative. Evidently 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 too 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-That bothered me too. I found their indignation hard to believe. 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, were instead squabbling among themselves and diverting their energies with divisive and destructive nonsense. Q-Apparently the campus administrations only make matters worse. A-I definitely agree. A good example was that 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 attributed inherited racism. Q-I would imagine such nonsense could do a great deal of damage to a sensitive White student. While racism among Whites has not completely disappeared, all Whites are not racist. How is something like that antiracism seminar 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 and Hispanics teach about Hispanics. No White should be audacious enough to tell a Black or Hispanic student about his/her own history. This has been described as a form of apartheid

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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. Q-Youve got to be kidding. Ive never heard of ice people. A. I kid you not, oh unworthy Ice Person. But even worse; on the same faculty is a philosophy professor who believes Blacks are intellectually inferior and have an inherent propensity for crime. Q-Okay. Ive got one for you. Have you heard the term uniculturalism? A-Yeah. Q-But 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 the 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 ideasthese ideas 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 the choice concept. They will

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benefit from the Bush administration's proposal far more than rich families will. Q-So what about the trend towards all Black schools? Isn't that resegregation ? How can that be tolerated? A-In Milwaukee in 1990 tests in that citys integrated schools showed White students averaged sixty on a reading test and Blacks averaged twenty-five. 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 the test showed that plan was not working something else has to be tried. The Black schools were to emphasize values and a sense of community; something young Black males especially, were missing in their splintered home lives. Q-Fine, but 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 other hindrances to economic success. What's the difference between telling a minority dropout he can't get a job without a highschool diploma or he can't get a job because of the racist White establishment? With the best of intentions millions of dollars are lavished on antidropout 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 are bound to run into the problem sooner or later in the form of a promotion barrier. Whether you believe it or not, credentials generally determine who moves 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 that prolific author, George Gilder, the protection of any schooled but shiftless members of the middle class

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from the competition of unschooled but aggressively hardworking poor people. Q-What if education required for a specific position was 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 Rshas increased very little. Q-I see your point; otherwise how could American companies go off shore and make use of 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. Q- That shows the importance of incentives and disincentives once again A-Well heres and example of a disincentive: Our Government is 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-True. 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

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country it is bound to reduce the productivity of the nationall 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 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. Own peopleI hate that concept. I remember when we were all Americans. Q-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. A-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 starta 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- Did you know 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 in order to compete.

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Q-That was six years ago. I heard that on the faculties of lots of universities and colleges Blacks out-earn comparable Whites. Do you think this is 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 a 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 jestI 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 phony 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.

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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-I find the suggestion by Eldridge Yehuda, chairman of AfroAmericans for Reparations, that the U.S. government owes Blacks about four trillion dollars and Blacks should withhold tax payments until the government pays up, even more interesting. 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.

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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 one hundred and fifty 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 one hundred and eighty percent in the last ten years. However, most Indians are highly educated when they immigrate to this country. Already in the state of New York forty 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 fifty-eight percent of California's population. Between 1980 and 1989 the Hispanic population grew by thirty-nine 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 eleven 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 twelve percent, but for Hispanics it was closer to thirty-two percent. A report based on the most recent census found that 78.7 percent of Hispanics sixteen-seventeen years old were in school compared to 91.6 percent of the total population. School completion dropped for those ages eighteen-twenty-four 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 twenty-five thousand Ph.D.s were awarded to Americans but only three hundred and fifty-eight went to Blacks. We need to get Black

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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 twelve and seventeen 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, 1990 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-I do. What do you think gives 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-SureI agree with all that. So why do you think President Bush vetoed the 1990 Civil Rights Act? A-President Bush is definitely for civil rights but couldnt sign legislation 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

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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 one hundred and fifty thousand 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. He referred to the Supreme Court's recent misinterpretations of federal civil rights laws. Q-I remember the women were pressing some issue in one of these attempts at legislation. 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. However, 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-Several comparable worth, also known as pay equity bills were passed in the House during the ninety-eighth, ninety-ninth and one hundredth Congresses but that is as far as they got on their journey towards becoming binding law. In fact Section twenty-two of the civil rights legislation that was passed by the House in June of 1991 had a

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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 to 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.

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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 questionbusiness 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?

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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 Billl? 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. You may be wondering about the origins of some of these proposals. They discuss origins next. 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 fifteen employees and didn't ban racial harassment on the job nor prevent discrimination after a contract was made.

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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 okay 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 five to four 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 minoritiesthat is if they result in statistical underrepresentation of minorities, including womenthey must be justified by business necessity. Q-And how is business necessity defined by the law? 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-Well then, 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 dreamall 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

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amendment to the 1991 Civil Rights Act, 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 sexthe 1991proposed 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 and 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 Billthe one that took effect out of the three presented in June?

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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? There was something special about him. A-Jack Brooks. Do you consider it special that he was 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, he said, I've got to believe it. I was shocked. To think you must believe something you are told without further investigation simply because youre 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.

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If theres one thing that I know, it is that 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 violating the legislation. This law placed the burden of the proof on the employerguilty until proven innocentscary 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. The latter is in the employers best interest. Q-Everyone says there are too many lawyers in Congress, but the nonlawyer 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 lawyers themselves 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 that you said a Congressman in the early 1980s had carried on about the changes in costof-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 Press on June 6, 1991? He admitted the Danforth Bill gave employees the right to sue but put the burden to prove their 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

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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 spend 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 then. 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. It was a quota bill. On the other side, Senator Metzenbaum of Ohio used some fancy doublespeak 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-Obviouslyand 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 the one hundred 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

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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- That's interesting. First it covered defense contractors and then it was expanded to federal contractors and finally any contractor receiving federal money. 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, I guess 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.

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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 predate similar updated federal laws. Am I right? A-Right about 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-Would it 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 personseven if they employed less than five employees. . A- Well, 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.

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Public interest and significant are key words in determining whether or not government interference is warranted in person to person relationships. Q-Unbelievable. I always thought he 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-I happen to know that 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. We re-enter the dialogue as the participants are discussing laws concerning hiring practice, as related to civil rights. Q-In 1971 we encounter the infamous employment tests in Griggs v Duke Power. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. The employment tests had to measure the person for the job and not the person in the abstract. A-In other words, any test had to be job related. That was in 1971 and twenty years later in 1991, a five foot, one inch stewardess won a lawsuit to keep her job. Today an airline is apparently not allowed to hire based on job performance. The rationale: since so many Asians are short it would amount to discrimination. Never mind that a five foot one inch lady couldn't begin

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to reach back in the overhead bin to place or retrieve heavy luggage or handle large passengers that are ill or need help. Q- Is it discrimination to refuse to hire tall or heavy jockeys? How about short basketball players? Do fashion models have to be tall and thin can't shorter overweight girls sue? Isn't it ok to turn down people who in the employer's judgment may not be able to perform the job properly? How about Jane Doe who is allergic to cats and cigarette smoke could she sue a veterinarian if she applied for a job and was turned down just because she couldn't handle cats? Could an owner of a bar refuse to hire her just because of her allergy to cigarette smoke? Is this fair? Is this just? A-You're getting a little carried away. All that nonsense is in the here and nowlet's go back to the seventies and trace the route. Q-Okay by me. A-In 1971 the University of Wisconsin law school rejected a White male whose test scores were higher than 36 percent of the minority applicants who were accepted. He sued. In 1974 the Supreme Court declared the same case moot as the plaintiff was finishing school. Q-I thought the Bakke case was the first case based on the theory of reverse discrimination? A-The facts were similar to the 1971 case only it received a ruling and therefore more publicity. In 1978 the Court ruled Alan Bakke must be admitted to UC Davis medical school but also said some consideration in admission may be given to race. Q-I know the reverse discrimination controversies began over school admissions but it seems like the squabble spread pretty quickly to cover hiring practices in the workplace. A- Absolutely right. In 1979 Brian Weber lost his suit against the steel companies who were reserving half their training slots for Blacks, and in 1980 Earl Fullilove sued over contracts reserved for minorities and lost. The Court explicitly upheld race-conscious remedies in the Fullilove case. Then in 1984 the Memphis Firefighters sued because of lay-offs based on race, not seniority. The plaintiffs won the reverse discrimination case but the court approved the principle of raceconscious remedies. This is also called the Stotts case. Q-Didn't that originate the victim specificity doctrine? A- Right. You surprise me. But although the Court ruled that affirmative action concerns would have to give way to seniority rights this would not

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be the case if an individual could show that discrimination was directed at him or her personally. The victim of provable discrimination would be awarded the seniority otherwise denied so that it could be said that seniority still governed layoff decisions. This became the victim specificity doctrine and it required complainants to prove that they were the victims of intentional discrimination before a remedy could be implemented. Q-Reagan was President in 1984. What role did the Reagan Administration play in all this? A-Reagan's Justice Department, under William Bradford Reynolds, tried to get rid of group entitlement and equal results and move toward equal opportunity. In its 1989 case the Court began saying if you charge discrimination then prove discrimination and include specific injury and then the remedies better not discriminate against anyone else. The Reagan Administration felt strongly that employing coercive racial preference, in an attempt to make amends for past racism, did more harm than good. Reynolds used to infuriate his opponents when he quoted Martin Luther King Jr. who maintained that the Constitution should be racially neutral. There are a lot of people out there that believe colorblind policies might cool racial passions. Q-Well, don't count NAACP executive director Benjamin Hooks as one of them. I remember his November 1985 New York Times article in which he declared to the world that The U. S. Constitution was never color-blind? Didn't Reynolds try and use the victim specificity doctrine to invalidate affirmative action? A-Yeah, but big business, afraid of negative publicity, sabotaged the Administration's efforts right from the beginning and government agencies shared their fears. The Civil Rights Division asked fifty-six government employers, with court-ordered or privately negotiated affirmative action programs, to fight them in court. Only three agreed to do so. It seems that large corporations and local governments had grown comfortable with voluntary or court-supervised programs that guaranteed members of identifiable minority groups a portion of their available jobs. In fact the National Association of Manufacturers and other business organizations praised affirmative action mandates, asserting that goals and timetables were an effective means of bringing minorities into the workforce and they let the Reagan Administration know that they had no desire to attack affirmative action programs. The National Association of Manufacturers spokesman even went so far as to insist that voluntary compliance would not work. Q-What about small businesses?

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A-Smaller companies try and avoid any entanglements with government because so many government agencies view small business as a problem; a problem beyond their control. Agencies like the Equal Employment Opportunities Commission (EEOC), Occupational Safety and Health Administration(OSHA), Immigration(INS) and Labor Departments (DOL) all find it difficult to supervise small businesses because they are so diverse and so plentiful. Q-Don't you think some of the antagonism that many bureaucrats show towards the small business person comes from an ingrained belief that most of them exploit their workers, evade regulations and taxes and gouge their customers? A-If so, I would add it is a mistaken belief. Without small business you'd have a much large number of unemployed minority workers. Right now four-fifths of all working minorities work for small business and this despite disincentives by government. Q-What do you mean by disincentives? A-Government acts as a disincentive to ghetto employment when it threatens discrimination suits if ghetto employees are paid lower wages and by forcing quotas in proportion to the racial composition of the work force in the area. Rather than fight, most small businesses set up shop elsewhere, just as most large companies do. You can't be productive and wage a war against government at the same time. Q-So much for business standing up for its rights. They'd rather take flight than fight. A-I cant blame them. But your ordinary citizen has been less afraid to voice his opinion. A 1984 survey for USA Today found one out of ten White voters said that he had lost a job opportunity or an educational opportunity as a result of preferential treatment for minorities. Q-Who is the Head of the U.S. Commission on Civil Rights under George Bush and what is the Commissions attitude towards some of these questions? A- Clarence Pendleton, Jr. doesn't believe the 1964 Civil Rights Act and the 14th Amendment to the Constitution demand preferential treatment. Mr. Pendleton campaigned around the country in an effort to eliminate quotas as demeaning to minorities and punitive to the majority. He has said that the civil rights law of 1964 was never given a chance to work because in 1965 we quickly added affirmative action laws and in 1970 goals and timetables were added by Richard Nixon. Q-I though President Johnson did that?

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A-So do most people, but as I pointed out earlier, it was done under Nixon's watch. Clarence Pendleton has suggested that it is racist to fail to ask why White people don't succeed. He says it is sinister to assume people need a government program in order to get an education or a job and maintains that backs made more progress before government intervened. Twenty years after the war on poverty we had more poverty, more street crime, more teen pregnancy and worse education. Q-It sounds like Mr. Pendleton could have easily served in the Reagan Administration with his philosophy. A-You're right there. In the true Reagan tradition, Mr. Pendleton blames government. The best thing that minority people can do, if they are smart, is take their lives back from government and ask for less of it because it makes a mess out of things. Like George Mason University's social scientist, Walter Williams, Clarence Pendleton talks about how the Boston Celtics would only be allowed four Blacks and would have to include women and other minorities if it were forced to attain racial balance. Q-People wouldn't buy tickets. A-You're rightstatistical parity is not good economics. Lawyers make a lot of money in legal fees via civil rights legislation. Pendleton says when there was segregation you had rich, middle and poor Blacks all living together. Good role models were available. He blames the disintegration of Washington DC, his home, on Black, not White people. As in so many communities, once desegregation was forced, Blacks stopped patronizing Black businesses in their hurry to patronize White businesses which had been off-limits. Q-This is understandable but I can see it was harmful too. A-The thinking was White is right. Blacks wanted what Whites had and they rushed to get it whether it proved to be inferior or not, and they gave no thought to the protecting and encouraging those in their own Black communities. Q-In 1986 wasn't there a suit along this line brought by a Michigan schoolteacher? A-Yes. The teacher, Wendy Wygant, was faced with layoffs based on race not seniority. The Court ruled as in the Memphis firefighter case but added discrimination in hiring can be tolerated because, as Justice Powell wrote, racial exclusion in applying for a job is not as intrusive as loss of an existing job.

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Q-If I remember, that was the case that pit the School Board's wellmeaning but race-conscious policy against the teachers' constitutional right to be treated as individuals. A-Absolutely. The School Board maintained that schools wouldn't be truly desegregated until its faculties were. That case was in May and in July of 1986, in the Sheet Metal Workers case, the Court upheld a lower court order that required a New York union local to attain 29.23 percent nonwhite membership by August 1987 as a remedy for past discrimination. Q-I thought firefighters were involved? A-Youre right. The Court also approved a consent decree in which Cleveland agreed to settle a discrimination suit by giving Blacks and Hispanics priority for promotions as city fire fighters. Q-That's what I remembered. The 1986 rulings by the Supreme Court made it legal for White males to be subject to racial and sexual discrimination in favor of people who had never personally suffered from it in the past. A-Naturally this increased resentment. Q-It looked as if the affirmative action forces were definitely gaining ground. A-What can I say? U.S. vs. Paradise continued the trend in favor of reverse discrimination. The issue before the Supreme Court in 1987 was whether equal protection of the law was now being denied to Whites? Were racial quotas permissible under the U.S. Constitution? Q-Wasn't that based on a 1984 ruling somewhere in the South? A-Youre right again. After getting no response to his repeated orders to integrate the Alabama State Troopers beginning as far back as 1972, an Alabama judge ordered that for a period of time, at least fifty percent of the promotions to corporal in the state troopers be awarded to Blacks if qualified Black candidates were available. In February 1984 the state complied and then appealed to the Supreme Court. The 1987 decision was 5-4 in favor of quotas. Q-I'm surprised by these ruling which occurred despite the opposition of the Reagan Administration and its judicial appointments. A-Sometimes wheels turn slowly and the effects of the Reagan appointees became apparent later. In 1989 the cases began to proliferate.

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In Martin vs. Wilks the Court swerved and ruled 5-4 in favor of workers filing new lawsuits claiming reverse discrimination under court-approved affirmative-action plans. The 5-4 decision in the Patterson case said that the 1866 civil rights law giving the right to contract equally to all citizens doesn't permit lawsuits involving harassment on the job or other conditions of employment. Q-Wait a minutewouldn't you say that case in Virginia, which ruled against set-asides of government contracts for minorities, was pretty much a reversal of those Slaughter-House cases you told me about earlier and they way they justified governments' playing favorites? A- You must mean the City of Richmond vs. Croson which severely limited the power of government to favor women and minorities in public contracts. In that case Justice O'Connor said race-conscious remedies must be subjected to strict scrutiny. Q- I understand that in Richmond, Virginia, minority participation in city employment contracts fell from thirty-two percent before the Croson decision to eleven percent in the fall of 1990. A-The Croson ruling was too narrowly defined, leaving us with the possibility of good and bad discrimination. Federal set-asides for Black contractors are good but municipal set-asides for Black contractors are bad. How would you like to hear about another city's experience with setasides? Q-Why not? A-The citizens of Canton, Illinois got caught up in someone's clever scheme awhile ago and lost two hundred and fifty thousand dollars. More importantly, they may have lost a bit of their willingness to go out on a limb to help the next guy. The town offered a low interest loan to attract investors in order to keep Canton Industrial Corp., the town's largest employer, operating. Q-Wasn't Canton Industrial a subsidiary of International Harvester and had at one time employed 2,300 people in the production of farm machinery? A-I don't know how many employees it used to have, but the rest is correct. Anyway, the town was successful in its attempt to attract new plant owners who soon ran up losses of one and a quarter million on sales of three hundred and seventy-three thousand dollars. The new owners turned to government as a way out of their predicament. They decided to sell the business to a woman, believing A woman-owned

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enterprise, would be eligible for priority treatment in federal government contract awards. Unfortunately the favorable treatment was only a suggestion and did not carry the force of law. They were stuck with a second new owner whose only qualification for ownership was her sex. According to the account in Forbes magazine, in early 1988 the company owed creditors almost a million and a half dollars, leaving investors with stock worth only about seven cents on the dollar. Q-I guess they all learned a lesson about the futility of pursuing government subsidies. A-Guess again. A few months later someone else was on the side-lines gearing up to call on Uncle Sam one more time. The next potential savior was a Puerto Rican, expecting to benefit from the law which mandates the government award five percent of defense spending to minorityowned firms. Q-There are always those who are able to turn any regulation to their own advantage. I guess government should pay attention to that rule of yoursthe one about people always acting in their own self-interest. A-At least what they perceive to be their interest. Q-Along that same line, I heard that Harvey Gant, former mayor of Charlotte, North Carolina and Jesse Helms' challenger for the U. S. Senate in 1990, got a contract to operate a radio station on the basis of his race. He apparently wasn't able to raise the funds required to successfully operate it so he sold it to an all White group for three and a half million dollars. He may have thought it was in his self-interest at the time, but it came back to bite him during the campaign. A-The Minority Business Development Agency was created under the Commerce Department to help minority owned businesses. MBDA spends more money running itself than helping minority businesses. Such entities are hotbeds of favoritism and federal boondoggles. Q- When Pete Wilson was running for Governor of California he befriended the San Diego State University Foundation that stood to lose its one million dollar contract to run an MBDA center in Los Angeles. Its competitor was another Wilson supporter, the Miranda Strabala Association who he also befriended. Unfortunately he sent his letter of recommendation to the wrong MBDA office. Even though SER Jobs for Progress , which ran the MBDA center in Riverside, had failed to meet its goals during the first two years of its contract, Wilson recommended its contract be continued. A-A study found that thirty-two percent of the minority businesses who benefited from provisions found in the 1977 Public Works Employment Act, were actually sham companies owned and managed covertly by Whites. A low-bid White-operated company is sometimes hired by the

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higher-bid minority company who holds the government contract but has neither the skill nor the equipment to complete it. The low-bid company has only its minority status. The Government Accounting Office estimated that minority contracts on public works projects were nine percent higher than low bids from non-minority companies and 10.7 percent to 15 percent higher when it comes to highway jobs. The non-minority firm gets the job, that without the law they probably would have gotten in the first place, and the minority firm keeps the premium the government paid. Q- Sounds like a good deal for all the parties involved. Only the taxpayers lose. A-I'm constantly amazed how often detrimental policies can be traced to the Nixon Administration. Set asides, for instance, originated in the Small Business Administration Section 8(a) programs. Set asides allow a minority business enterprise (MBE) or a disadvantaged business enterprise (DBE) first crack at government contracts. A blue-eyed, fairskinned contractor who claims to be one sixty-fourth Cherokee received a nineteen million dollar contract for work on the Los Angeles RapidTransit System. His claim to minority status and eligibility for a set aside was reviewed in 1988 by the Department of Transportation but many similar claims are uncontested. Q-We're not talking small potatoes here. Set asides totaled more than fourteen billion in 1986. A-Discrimination by government is wrong and I know of no one who believes two wrongs make a right. If, as politicians are so fond of claiming, Americans (the American people is the term they most often use) really want to see minority firms get a helping hand and stand on their own, they will extend that hand. If they don't, and I'm aware that some don't (only politicians seem to know what all the American people want) they will insist that minorities compete in the market place without special favors. I personally believe a majority (maybe a small majority) do want to help, but pretending by politicians will not make it so. Q-How does anyone imagine that discriminating against White-male-run businesses can make up for past discrimination against minorities? A- Obviously a lot of people don't because after Croson nine more programs were declared unconstitutional and twenty cities and states voluntarily ended their set aside programs. That limited the use of setasides somewhat, but limited, does not mean dead. If the right analysis is done it may still be possible to justify set-aside programs.

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Q-It's still possible all right, if the plaintiff has the time and money to compile a statistical paper trail showing a minority owned firm has been frozen out of local construction contracts in the past. I heard of one law firm in Seattle that was paid four hundred thousand dollars to do just that. A-I know that Oakland California also had an expensive study done for that same purpose and not long ago. It's worth investing a little money for a chance to get your hand in Uncle Sam's pocket. Q-San Francisco never gave up its set-aside programs. A-Why am I not surprised? The U.S. Constitution says explicitly that no state shall deny to any person within its jurisdiction the equal protection of the laws. It forbids racial distinctions in the exercise of governmental power. Q-But didn't the 1986 Supreme Court try to make a distinction between individual rights and rights in the general society? A-Thats correct. We went into some of this earlier. In 1987 the Supreme Court allowed benefits to individuals who were not themselves victims of discrimination. The minority of justices agreed that was trampling upon the rights of innocent Whites, but the majority felt the decision did not impose an unacceptable burden on innocent third parties because the hiring mandate was to be severely limited both in scope and duration. Q-Yeah; we did talk about this earlier. I think the Court said something about it being okay to make qualified Whites wait a little longer for their promotions. But what really got me was the ruling that a federal judge can order school officials to raise taxes to pay for desegregation remedies. Do you know the case I mean? A-Yes and I agree, that's an incredible ruling. In April, 1990, in another five to four ruling, Justice White said to deny judges the right to intervene in matters of taxation would fail to take account of the obligations of local governments to fulfill the requirements that the Constitution imposes on them. The ruling, according to an ACLU attorney, means states and cities can't plead poverty to impede legal school desegregation. By summer of 1990 there was an avalanche of lawsuits requiring states to equalize educational spending from one school district to another. Q-Such a ruling denies economic realities. It sounds to me like we have Justices in Wonderland. A-I'm with you! But remember, most of these decisions have been very controversialfive to four rulings are very tenuous and evidence disagreement by the best legal minds in the country. These rulings may be reversed at any moment, but in 1991it seems safe to assume that

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laying off Whites in order to save the jobs of Blacks won't be tolerated nor will rigid racial quotas be enforced because in these cases there are easily identified White victims. Q- But when it comes to race-conscious hiring and promotion practices, timetables and goals are allowed. I thought the Reagan appointees to the Supreme Court would have made more of a difference. A-As I said before, sometimes the wheels turn slowly. The Reagan Administration may not have won many affirmative action battles, but it promoted its reverse discrimination theory. It's hard to argue with their logic. You don't cure discrimination by discriminating against an innocent individual. Q-Two wrongs don't make a right. A-But while the Reaganites had logic on their side proponents of affirmative action had emotion. Richard Hudnut, Mayor of Indianapolis said on TV that affirmative action programs were A general American commitment to the fulfillment of the American dream, which is one where everybody has equal opportunity. He suggested that without hiring mandates the nation would be taking a step backward into a world where only White males had jobs. Q-Columnist Carl Rowan did his part by telling readers across the country that good Americans, exemplified by Mayor Hudnut, care about justice and know when something mean and destructive is being foisted upon them A-I only wish this were the case, because affirmative action has been just thatmean and destructive and harming those most whom it purports to help. A-Many opponents of affirmative action argue that the whole point is to lower standards. Q-Maybe it is a valid trend. Pope John Paul's recent decision to waive the requirement of a miracle in his determination to have an American Indian saint is another case in point. A-I don't know about that, but I do know in a truly color-blind society people readily admit to superior, normal and inferior members of every racial group. The superior and normal members of the Black community suffer because of the innuendos that Blacks could not succeed without the extra help provided by affirmative action laws. Q-Proponents of affirmative action lump minority people as groups whereas opponents of affirmative action, like yourself, emphasize the effect of affirmative action programs on individuals.

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As we were saying earlier, people aren't the same just because they are members of the same group. All Blacks aren't underdogs; some are very successful members of society. To imply that a group cannot have successful leaders because its members are all underdogs hits at the selfesteem of both the group and individuals within that group. A-I agree. An example of that occurred in the San Francisco Fire Department where an African American who scored only three hundred on a test was skipped over a couple of higher ranked candidates for a position providing experience for the office of Chief. He is now a chief in the San Francisco Fire Department and reporters claim he tries to duck questions and stay out of the limelight, no doubt aware that his colleagues realize he lacks proper qualifications for the job. Q-That's just what we were talking about; well-meaning programs hurt those they intend to help as well as others. In this case firemen and the reputation of the whole Department and the entire City. Along this same line someone feared he might have gotten his job because of the need for employers to hire disabled people for appearances and for tax incentives. He said the thought made him feel worthless. This person found the whole concept of affirmative action to be very degrading because he believed he had every right to the job because of his abilities but knew that others would instead credit the government program. A-Although Ronald Reagan was ridiculed when he touted the merits of a color-blind society, I'm absolutely convinced that should be our goal. It seems to me that we were a lot closer to reaching that goal before the affirmative action legislation interrupted the progress that had been achieved. A color-blind society is fairer and in the long run more beneficial for everybody. Q-What makes you think it could work? A-For instance at one time the Detroit Symphony had all White musicians. They used to test behind a screen, only listening to the music with those who auditioned being given a number so there was no chance of knowing the player's sex or race. The screen is gone now, so that race and sex can be considered. Which is fairer and which makes a better symphony? Q-How do you approach the civil rights debate that is going on in this country right now? A-I like to try and put myself in the other guy's shoes. I realize it's hard, but somehow we must manage to communicate. Let's for a moment forget the differences and concentrate on the sameness.

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All of us, when we work hard, want recognition and feel cheated when others denigrate our work and suggest our success was due to something other than our own effort. As things stand at the beginning of the nineties it is almost universally assumed, even if not articulated, that a successful minority is the beneficiary of a special program. Q-You mean racial preferences. Racial preferences were set up to benefit minorities weren't they? What's the big deal? A-Of course. If people didn't benefit from racial preferences what would be the point of having them? Q-I would suppose the bigger problem in the nineties is the increase of disparaging remarks directed at individual members of minority groups. A-I've always believed that insensitive remarks show more about the speakers than about the persons who are the object of the remarks. Q-Besides just about everybody is subjected to denigrating remarks and unjustified skepticism from time to time. A-That's true, but it doesn't excuse the practice or stop a person from being hopping mad when it does occur. Years ago youngsters were taught that name calling is more a reflection on the caller than the recipient of his or her epithets. Everyone who was ever called a nasty name, and that was probably all of us at one time or another, knew enough to retort with the applicable jingle: Sticks and stones may break my bones but names will never hurt me. Q-I don't see how you can equate calling children names on a playground with racial tensions? Allowing such attitudes does more than just hurt feelings, it leads to loss of jobs and opportunities. That's why we need laws to protect against discrimination rather than telling people to ignore what is happening and just go about their business. A-You're talking about Orwellian thought police. Laws are force and force will not work in this situation, nor would force have been a proper response on the playground. Besides if you think the majority of White employers in this country would be influenced by the openly expressed racial hostility of a few people, then you would be showing a bias against the White race, attributing an ugly propensity for bigotry to a very large group. You would in fact be expressing a belief that White employers would go out of their way to treat a minority person badly. It seems to me that people who hold those assumptions are as guilty of accelerating racial tensions as those who assume members of a minority race are less capable than Whites and therefore must be given a crutch via mandated preferences.

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Q-So what would you suggest? A-Appeal to the best instincts in the population. Change the goal from achieving equality through force to achieving a color-blind, creed-blind, race-blind, sex-blind society through faith and trust in the basic goodness of mankind. Q-You've got to be kidding! A-You think it's naive, but I know it's right. Martin Luther King, Jr. and Ronald Reagan were both right in their denunciation of forced preferences and in their support for a color-blind society. Q-All this right and wrong stuff really bothers me. Columnist, Carl Rowan wrote in December 1990 that the call for a color-blind society is a call for maintaining the special privileges of Whites. A-Referring to people as Whites, Blacks, Hispanics, Asians, Women and Disabled is in itself separatist and confrontational. Every Bobby, Ted and Mary Ann within a specific group is as different as the Bobby, Ted and Mary Ann outside that group. Q-Well, isn't that what Jesse Jackson is saying with his jingle: Yellow, brown, Black or White, we're all precious in His sight.? A-I believe he's saying we're all human beings so let's support one another. Of course his idea of support would be to vote collectively for a specific political agenda. I say being human is our common thread but I celebrate and respect the diversitydiversity is America's advantage, not her curse, as foreign observers often assume. Diversity needs to be emphasized but not the diversity of groups, the diversity of individuals. America has always been a nation of individuals; that is the uniqueness of our political heritage and our culture. Let's not lose that. Q-All Blacks are not alike. All Whites are not alike. All Hispanics are not alike. All Asians and other ethnic minorities are not alike. All Challenged people are not alike. All older people are not alike. All teenagers are not alike. A-All men are not alike. All women are not alike. This is something policy makers have forgotten. I believe individual rights, not group rights should be protected under our lawsperiod. As we enter the next dialogue, the participants are discussing individual identity as opposed to group identity. A has been arguing the benefits of a color-blind society that judges the individual independent of group affiliation according to ethnicity and gender.

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Q-Would that mean that you wouldn't favor the Supreme Court Ruling in June 1991that extended the 1965 voting rights act to the election of judges? A-Why would I be against that? Q-Because it protects group rights as opposed to individual rights. A-Well you're probably right in the best of all possible worlds but since the United States of America in 1991 still isn't Utopia, I'd have to look at the alternative. I'm ashamed to admit I missed that ruling, Why dont you fill me in? Q-What you had was civil rights groups claiming the reason there were only five hundred Black judges out of twelve thousand state judges in Louisiana, was rigged voting. As an example fifty-four percent of the registered voters in New Orleans are Black but they can't elect their own Black judge because New Orleans is merged with three White suburbs into a super-district which is sixty-eight percent White and thirty-two percent Black and it elects two justices at large. A-Isn't that about the same break down of Blacks and Whites throughout the state? Q-That's true, Louisiana's population is approximately one third Black. At any rate Justice Antonin Scalia wrote for the three dissenting Justices that The Voting Rights Act is not some all-purpose weapon for wellintentioned judges to wield as they please in the battle against discrimination. Whereas Justice John Paul Stevens writing for the six affirming Justices wrote, Congress enacted the Voting Rights Act (to) rid the country of racial discrimination in voting. . .state judicial elections are included in the law. A-That was simple enough and I guess it will lead to new voting districts. I do think this racial proportional fixation is unfortunate. I hope we are someday able to look around race and other classifications to the character of the person and feel assured that all citizens will be represented fairly because the judge or elected official is a good and just person, without regards to his racial classification. Q-Highlighting rights and privileges makes people touchy. When anyone goes around with a chip on their shoulder daring others to knock it off, tensions rise. A-Employers understandably become more reluctant to hire workers who seem to be waiting to catch them in some infraction of a law.

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Q-I suppose that's one version of your thought control police. It kind of reminds me of the World War II when the German youth became gung ho spies, ready to report their neighbors and even their parents for any signs of disgruntlement with the Nazi party. A-It's definitely not a healthy atmosphere. For years and years it was commonly, and I believe wisely acknowledged that morality cannot be legislated. I believe the races would have achieved a greater harmony naturally if certain aspects of the civil rights laws had not been enacted. The process would have been slower but the foundation would have been stronger and today race relations would be the better for it. Q-Don't you think two hundred years was long enough for Black people to wait for White people to accept them and treat them as equals? Appealing to this society's best instincts got many good people lynched! A-If you're going to appeal to emotions, I give up the discussion. I'm looking for alternatives to help the situation we have today. I can understand the desire to speed things upwho can't? People of goodwill naturally want to see justice achieved today, not tomorrow. And although I believe many people forced racial relations in the past because they cared about their children and future generations, it is exactly these future generations that are now suffering because of their haste. Q-Again I ask you what you personally would have done differently if you had the power? A-I would have attempted to focus the legislation on the public sector only. Maintaining the distinction between public and private property is essential to the political and social structure of this country and I believe policy makers lost sight of the rights of private citizens to control their own property. Q-I don't believe that's true. We don't let a person take his car just because its his own private property and run over someone, or use a paint brush he owns to deface someone's property. A-Now we're getting down to the nitty-gritty. The question supposedly answered by our Constitution is under what, if any conditions can a group of individuals impose its will on another individual or group of individuals. Q- Now what's the difference between telling a person he cannot discriminate in his hiring practices and that he has to hire minorities in the proportion that they are represented in the local community? A-The most obvious difference is practicality. One can easily see by the numbers if the proper number of minorities is being hired but one cannot see if the reason someone was not hired, or advanced on the job or whatever, was due to his religion, skin color, sex or age. In other words,

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without some pretty sophisticated thought police we cannot tell if the employer discriminated when hiring. Q-Thats precisely why policy makers have suggested that numbers be used as a presumption of discrimination. What's wrong with that? A-By asking what's wrong you are introducing morality and ethics into the discussion, and, in my judgment, morality is at the core of the civil rights issue and it cannot be discussed or solved without examining where we stand as a nation and perhaps suggesting where we as individual citizens believe we should stand. Because, as we all too often forget, there is no king at the head of our government with divine rightsthese decisions fall upon the shoulders of individual citizens. Q-Again, I don't agree. Individual citizens don't have the time to analyze and ponder over issues like civil rights. We delegate these discussions to our legislators and then if we don't like what they come up with we give the courts a go at it. A-And that is why we are experiencing tensions and witnessing a polarization of groups in America today. If individual citizens don't make the time to think seriously about such issues they better be prepared to waste a good deal of time trying to lead a fulfilling life in a discordant society. Q-Okay, at least you and I can spend some time wrestling with these ideas, but I seriously doubt that you'll get more than a comment or two off the top of most people's head. They just won't think these things through. The most you'll get is undigested opinions, not even the speaker's own opinion, but more likely a parroting of the sound bite heard on the six o'clock news. A-Again, we exhibit a difference in our attitude towards people. You think I'm naive and I think you underestimate people. Q-Okay, Okay. I asked what is wrong with using numbers as an indication of discrimination? A-You can tell how I would answer just about any question if you remember my premise: People are always going to act in their own interest. So if a penalty were imposed for discriminating, a person would want to avoid the penalty, and therefore if numbers are used to determine discrimination he would make sure the numbers were in his favor and would adjust his hiring and advancement policies accordingly. In other words, it would lead to quotas. Q-For the purpose of shortening our discussion would you stipulate that discrimination exists and that it is wrong?

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A-I understand your desire to avoid belaboring the issue but I'm afraid I can't oblige. First of all since I believe people are self-controlling the ability to discriminate should be theirs. Were talking about preferring one thing over another and I believe a person is entitled to his preferences no matter the reason. Q-Be real! You know good and well by discrimination I'm referring to restricting someone's rights because of race, age, sex and so forth. A-It's impossible to have such a discussion in a hurry. You use words so imprecisely and their definition is extremely important to the outcome. To continue I would have to define what you mean by rights because I would not stipulate that anyone has a right to work for a private party unless that party wishes to hire him, nor do I believe any individual has a right to live in a private property that the landlord does not wish to rent to him. Q-I get your drift. A-And because I won't stipulate to it does not necessarily mean I don't think it is legitimate. It is just not as obviously true as you seem to think. As for wrong there is a distinction to be made here between (A) against the law, which I believe is the manifestation of a collective moral code, and (B) against the moral code of a given individual. In the first category are laws against people committing physical bodily harm against one another and the taking or destruction of one another's property. The second category is reserved for things like integrity, character, truthfulness, courage and goodness. There are no public laws in this areano state prosecutes a person for not being good. Q-But lying under oath is prosecuted as perjury. A-That's different. I would put discrimination in the second category instead of the first. Ethics require self-examinationin other words thought. Q-Meaning we shouldn't have civil or criminal laws to regulate it? A- I believe the fact that we have such laws, is part of the wrong turn I mentioned earlier. Q-This is getting ridiculous.

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A-I'm not trying to discuss what isthat can be seen by going to a law library in any county in the country and looking up civil rightsI'm trying to discuss what should and could be. It would be a fruitless exercise except that in the United States we the people have the power to decide these things. Q-Talk about naive! As I tried to convince you before, these things are not decided by ordinary people but by the judicial and legislative branches of government. A-That may have been true at one time during our history but its not necessarily true today. Now it's my turn to bring you up to date with some Supreme Court cases: in Berman v Parker (1954) Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation. And in Ferguson v Skrupa (1963) the Supreme Court said the judiciary could no longer hold laws to be unconstitutional just because they believe the legislature has acted unwisely: Courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. This means it is up to the people because courts have abdicated that responsibility to the legislators who the people elect every two or six years. We can make changesbig changes by changing our representatives. Q-Oh well now, I suppose that's not naive! Not only can ordinary people change the legislators when the return of incumbents has been over ninety-nine percent recently, but these super ordinary people can also influence them. Give me a break! A-Our real goal is not superficial tolerance but a warm harmonious relationship among the races built on a firm foundation of mutual respect. There is a difference between allowing and condoning. We don't prevent a person from acting before the fact. It is only after the transgression that we allow the offended party redress. Part of the problem, as I see it, is that when it comes to civil rights legislation we are practicing preventative law. Q-Many people would like to see preventative law, if that's what you want to call it, practiced on our streets also. There are documented cases where someone's life has been threatened and the police, powerless to act until after a crime has been committed, arrive too late to prevent a death. And forget restraining orders; they just don't cut it.

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A-What do you want? Would you like to see the police lock up anyone who is accused of threatening someone? Assault is a crime, you know, and its proof does not requiring any physical contact with the victim. Proving assault could be considered the practice of preventative law. Q-That may be difficult and take too long to prove. A-But that is the risk our society has decided to take. The alternative is to lock up people who might commit a crime, and I know of no one who would ever consider such a thing. Q-Because we don't do that, innocent lives are lost. That is not only an injustice; it is a tragedy. A-As I said, look at the alternative. An occasional injustice is the price we pay for our system of laws. An occasional injustice is the price Blacks may have wished they paid a little longer in order to have their children living in a color-blind society today. The moral fabric of the society would have gradually strengthened over the years until discrimination would have ended naturally on its own. Q-I don't buy that! There would always be people who would discriminate. A- Those who continued to discriminateand I agree there would always be somewould be the losers. Most people try and stay away from bigots. Those people, who if free from legislation, continued to ban minorities and women from their homes or places of business or social clubs would attract only their counterparts; similar narrow-minded persons, and they would deserve each other. In a free America that's how it should be. Q-I just can't believe you're saying this! Are you claiming race relations would be better off if private citizens were allowed to practice discrimination? A-It may not be the politically correct thing to say, but you and I both know race relations were getting better in this country, after, and in some sense due to the World War II. Progress was faster in some areas than in othersbut it was real progress because the injustice of segregation was reaching not only peoples' minds, but also their hearts and souls. Legislation is force, and is at best a sham progress and at worst a step backwards because it is offensive. People know preferential treatment is unjust, that quotas and set asides emphasize the differences among peoplesets them up as antagonists throughout society. In that sense the civil rights laws have done more harm than good. I believe you know it in your heart of hearts though you may not be courageous enough to admit it.

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Q-I'm frankly sick of hearing that you can't legislate morality and that morality must be nurtured from within. I agree with those who claim such nonsense is a phony excuse and a license to practice bigotry. A-And I repeatinjustice only begets more injustice and resentment. You may have a surface calm but the rumblings underneath are a result of an inadequate moral foundation. Civil rights activists were understandably impatient to see justice done. But the fact remains that they would have achieved a stronger and longer lasting victory if they had waited for a moral mandate from the people. And it would have come. Q-That's ridiculous. A-I'm advocating a winning strategy. Winners would be the people of all ages, races, gender and creed who are intelligent, hardworking, interesting, creative and sensitive and they would find each other without the false and flimsy trappings of government edicts which become embarrassing barriers to all parties. Q-I suppose you would argue that anyone who turns down a loyal, hardworking good employee loses. Wouldn't you say it's in the best interest of employers to hire the best employees, whatever their race or ethnic background? A-On the other hand, working in an environment where you know your boss was forced to hire you, and your co-workers resent you, is not what I would call a winning situation. Q-Are you saying you would let an employer hire all White people if he chose to do so, or allow the situation to remain where some schools have only White pupils and others are all Black? A-The words you used, let or allow is the problem. I don't believe our government has the right to control what I, or any other person does with the property he has earned and which lawfully belongs to him. Let signifies permission and nobody should have to ask permission to use what is rightfully his. Now property that is collectively owned by society, that taxes collected from peoples of all races, colors and creeds have purchased or maintained, is a different story. Agents of government should never have been allowed to deny access to public places to anyone. Q-What about the Southern States prohibiting Blacks from using the same public facilities as Whites? Do you think the separate but equal doctrine was legitimate? A-You wouldn't ask that if you believed me when I said I favored a color- blind society. Color-blind means no distinctions should be made

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on the basis of race. The color of ones skin should neither help nor harm a person under the law. Consequently separate facilities wouldn't even be considered. Q-That sounds fine and dandy and I suppose you'd just turn your back on what happens in actual practice. You'd just expect a Black person who can't even get an interview at an all White firm to believe that the country is color-blind! A-I would make certain that the government is color blind; the people themselves are, and should be, self-controlling individuals. Q-In other words, a Black would have the same chance as any other person at getting a government job but nothing whatsoever would be done if a private employer chose to discriminate against him or her. A-You believe that is terrible because you assume most White employers will discriminate, whereas I don't believe that is the case at all. Why do you think they had apartheid laws in South Africa prohibiting Whites from having certain dealings with Blacks? As someone once said, you don't have laws against elephants flying because they are not inclined to do so. Apartheid laws must mean Whites are inclined to deal with Blacks and therefore there must be legislation to prohibit it. Q-You mean you wouldn't bother to legislate against something unless you thought it was likely to take place. But we have proof that discrimination is not only likely to take place in the country but that it does take place and is likely to continue despite laws against it. A-It comes down to a person's belief about human nature, and I personally believe most people are basically good and want to help and be a positive force whenever they have an opportunity to do so. Q-That's so incredibly naive, I don't know why I'm even talking to you. A-Remember, in all cases people are going to first and foremost act in their own best interest. Q-So minority or female applicants will be hired only if they are better qualified and their interviews suggest they are the most desirable employees. You're saying the employer must believe the relationship will be beneficial. A-Not only if better qualified, but I believe they will be hired more often than not, if equally qualified. I believe affirmative action is built into human nature and is part and parcel of the desire to do good without sacrificing self-interest that we just talked about. I know my husband makes it a habit to trade with small entrepreneurs and patronize any new restaurant or business to help them get started.

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But if they are not as good as the larger or more established firms then he won't sacrifice his own interest and keep going back. That's generally how the market system works in this country. Most people like to champion the underdog. In our mobile society newcomers are welcome and then its up to them to sink or swim. Q-You're talking about business ownersI'm talking about employees. A study came out in May 1991 showing that Blacks with the exact same qualifications as Whites had a lot less access to the system. A-You're talking about the Urban Institute study that showed Blacks were given fewer chances to interview when they responded to advertisements for the same job. In eighty percent of the four hundred separate job searches, both White and Black applicants were offered equivalent jobs; in fifteen percent the White applicant beat out the Black and in five percent the Black got the job over the White. Government jobs were not included but if they had been they would have shown a definite bias toward the Black applicant. Q-Well how in the world does that square with your employers are basically good and most will do the right thing nonsense? A-That desire is still there but it has to be reconciled with what they believe is in their own best interest. Once again people will help others only if they don't hurt themselves by doing so. The employers involved in the survey were suffering from paranoia brought about by recent civil rights laws that make any minority a potential walking law-suit. Q-You mean they had good desires but would not sacrifice their own self interest in order to act justly. A-Nor should they. I find it quite easy to reconcile self-interest with the desire to be a good and just person. Thanks to the harsh penalties and the vague mandates of civil rights legislation, the supposed beneficiaries of those laws, minority employees, are rendered less desirable than equally qualified White employees. Think about it! Would you risk your business and your family's livelihood if you could avoid it? Those open ended judgments that Pat Schroeder and her cohorts don't want to see capped, turn women and minorities into a time bomb for employers. Be realistic. It has nothing to do with the color of anyone's skin except in the eyes of the lawmakers. We're talking about real live people trying to protect their own interests in the best way they know how. Q-Where, in your opinion, did the civil rights advocates go wrong?

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A-First, in not distinguishing between forbidding government from discriminating according to race and forbidding private individuals. Q-Most people believe the modest restrictions the 1964 Civil Rights Act put on private behavior were justified by the extent and magnitude of the wrongs it attempted to rectify. A-Don't count me among them. Liberty means any private individual may do even what may be morally reprehensible with his own property. A second mistake, I believe, was in legislating on behalf of an isolated group rather than all American citizens; equality of all individuals should have been the issue. The third problem came later advocating equal outcomes rather than equal opportunities in civil rights legislation. This led to group-based favors and prohibitions that expanded beyond original expectations. Civil rights proponents began to see Blacks as victims rather than as citizens entitled to equal treatment and consideration just as any other member of society. Q-It would seem that you are not overly concerned with reparations, unequal poverty, unfairness and prejudice. Am I right? A-I think I can best answer you by quoting James Madison: That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called. Q-That could take us back to the monopolies okayed by the Slaughterhouse cases again. A-Or to all the so-called Jim Crow laws which governed labor contracts and entry into trades and professions and successfully restricted economic opportunities for Blacks. Q-Not just Blacks. At the end of the 19th century San Francisco thought up ways to curtail the ambitions of hardworking, sharp witted Chinese entrepreneurs. A-And those that argue for preferential treatment for minorities now figure they are just equalizing these past injustices. But I know it is the wrong way to gotrite as it may sound it is nevertheless the truth that two wrongs don't make a right. Favors in the form of preferential treatment, set-asides, race norming and so forth only breed resentment. Q-You are not alone in tracing the rampant resentment of Whites towards Blacks and the setbacks suffered during the eighties, especially by low-income Blacks, to what many consider to be unconstitutional

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regulation of private behavior. Im not oblivious to the resentment of Whites when it comes to laws favoring one group over another and the double standards by which the races have come to be measured. A-I believe if the Government would truly protect the individual, supposedly inalienable, natural rights or civil rights of everybody Blacks, as well as other minorities would be empowered. As economic liberty increases and people are allowed to control their own destinies, I believe poverty and prejudice will decrease. Take for instance the situation of Alfredo Santos, who was prohibited from operating a jitney service in Houston by a sixty-eight year old law designed to protect streetcars or the case of Nancy Dukes who was unable to sell hotdogs from a pushcart because a New Orleans ordinance arbitrarily limited its pushcart permits to two. Q-You realize courts have a long history in upholding the police power of local governments in regulating occupationsthat is considered a legitimate state purpose. By the way, what is a jitney service? A-A jitney is really a van, and the service might be considered a cross between a taxi and a bus line. Mr. Santos had a five mile route through a poor Hispanic area where public transportation was inadequate and many residents didn't have automobiles. For one dollar he would pickup and drop off passengers anywhere along the route. I've heard of other jitneys that offer the added convenience of door to door service. As to your first comment, the court is supposed to scrutinize any regulation that has an impact on economic liberty to see that there is a rational basis for the regulation. In the last fifty years the Supreme Court has always found a rational basis which means even though it is understood that many regulations are simply to keep competitors away this exclusion of newcomers has been tolerated. Q-What exactly is meant by a rational basis? A-I can tell you what the procedure is in determining rational basis and you can draw your own conclusion as to what is meant. The courts ask if the regulation has a legitimate state purpose and if the means of implementing the regulation relates to that legitimate purpose. As a practical matter it is almost impossible to answer no to either of these questions. Q-Along this line of thinking I recall the case not long ago, of a Black man in Washington D.C. who was thwarted in his attempt to run a chain of outdoor shoeshine stands. If I remember correctly, the District Court applied that rational basis test and did answer no. They found that prohibiting shoe shines on D.C. streets when the streets were used for so many other economic endeavors was not right. Are you familiar with that case?

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A-You must be talking about Brown v Barry in 1989. Ego Brown quit his government job to be his own boss and hopefully to enjoy the profits of his labor. He found a need for a good shoeshine and filled it. He was so successful in his approach that he ended up training homeless individuals to work additional stands. The D.C. authorities shut down his business, citing a 1905 Jim Crow law forbidding shoeshine stands on public streets even though there was every other conceivable form of economic activity going on. The Committee for Civil Rights put one of their lawyers on TV to defend the City's power to regulate shoe shines for the public good . Worst of all was an attorney from the EEOC who told the world that Ego Brown would have more dignity on welfare than he would shining shoes. Talk about an elitist Big Brother! Q-And? A-The Landmark Center for Civil Rights successfully argued that the 1905 law involved in Mr. Brown's case was originally passed with intent to discriminate on the basis of race. The D.C. court found the right to follow a chosen profession, free from unreasonable governmental interference, has rightly been held to be protected under certain constitutional restraints and that protecting citizens from unreasonable economic regulations is a hallmark of American liberty, prosperity and progress. You probably saw Mr. Brown on TV or read about him in the papers after the case was decided in his favor. Washington D.C., the city government that had originally taken away his right to engage in business, proclaimed an Ego Brown Day celebrating entrepreneurship and persistence. Q-Trust politicians to do a quick turnabout to cash in on a good thing! A-That may not have been the Supreme Court saying no to a rational basis review but I know our highest court struck down an ordinance in Cleveland, Ohio. In that case the grandmother was forbidden to live with her grandson because of a zoning ordinance limiting occupancy of certain residential units to nuclear family members. Justice Powell wrote that the ordinance didn't do a very good job at addressing the city's concerns about overcrowding and congestion and he quoted Justice John Harlan who said in Poe v Ullman (1961) that liberty is protected by due process and found that includes a freedom from all substantial arbitrary impositions and purposeless restraints. A-You mean the Court found the zoning ordinance was stupid?

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Q-Purposeless is how they put it. A-Maybe you heard of Mark Anthony Nevels. Q-I read about him. He's the Black child who lived across from a first rate magnet school somewhere in the Midwest and sued the school district for refusing him entrance to his good neighborhood school and instead bused him across town to an inferior school. Right? A-Right. The Kansas City schools were under a strict racial quota of three Blacks for every two Whites and in this case White children did not enroll in this exceptional school which happened to be located in a Black neighborhood. There was room for 122 kindergartners but because only four Whites enrolled only six Blacks could be admitted and so 112 places in this superior school went begging and eighty-six eager-to-learn kids were placed on waiting lists and forced to travel to inferior schools because their skin did not conform to the policymakers' utopian plan. Q-This is weird. Desegregation of the schools shouldn't be about achieving racial balance at the expense of educational opportunities. A-The funny thing was the civil rights lawyer originally argued that the purpose of school desegregation was indeed racial balance and that improvements in educational opportunities would be frosting-on-thecake. Q-I do admit that sometimes all you have to do is label something a civil right and you've effectively captured the moral high ground. A-Beware of labels. Labels are often chosen with the intent of misleading. Every legislator worth his salt knows the value of putting one of the following words in the title of his or her legislation: poor, down-trodden, disabled, [challenged] elderly, women, children, civil rights, clean air, environment and others that don't readily occur to me.

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