[Newsweek, July 10, 1978]

REVERSE DISCRIMINATION

(By George F. Will)

"You cannot spill a drop of American blood without spilling the blood of the whole world," Herman Melville wrote in 1849. “* * * Our blood is as the flood of the Amazon, made up of a thousand noble currents all pouring into one. We are not a nation, so much as a world." But government policy has been, increasingly, to divide the majestic national river into little racial and ethnic creeks. If that policy succeeds, the United States will be less a nation than an angry menagerie of factions scrambling for preference in the government's allocation of entitlements.

That policy was endorsed by the Administration's brief against Allan Bakke, a brief which urged that the nation should cultivate "race consciousness." The brief did not suggest how the government will decide, someday, that persons who have been "victims," personally or through "their forebears," have been "restored"-a strange choice of verb-"to the position they would have occupied" but for discrimination. The Bakke decision pleases the Administration.

Bakke won because a medical school, with no record of discrimination to rectify, adopted a numerical quota for certain minorities, and admitted some who were dramatically less qualified than he was. The Bakke decision has made little law. Therefore, most existing policies will continue, so the law can be riddled with racial considerations. With regard to higher education, the decision suggests broad tolerance for reverse-discrimination policies that are less raw than that which excluded Bakke. And Justice Powell's opinion for the Court can be read plausibly as somewhat permissive regarding considerations of race and ancestry in the alloction of other government benefits generally.

"SUSPECT" DISTINCTIONS

The opinion says racial and ethnic distinctions are "suspect" and require "exacting judicial examination." But when state distribution of benefits "hinges" on race or ethnicity, the racial and ethnic classifications are acceptable if they are "necessary" to promote a "substantial" state interest, such as diversity in enrollments. Four Justices even assert the constitutionality of programs like the one that excluded Bakke, programs that do not just use "minority status as a positive factor," but that "set aside a predetermined number of places" for minorities. These Justices say, not groundlessly: "For purposes of constitutional adjudication, there is no difference between the two approaches."

Powell says that the "equal protection" clause precludes "recognition of special wards entitled to a degree of protection greater than that accorded others"; he rejects a "two-class theory" of equal protection. But then he says there can be compelling state interests served by constitutional forms of discrimination which disadvantage whites for the benefit of preferred minorities. This necessarily means distinguishing two classes of citizens.

Powell says there is a distinction constitutional dimension between an "explicit racial classification" that "totally" excludes members of some groups from full participation in a program, and "properly devised" racial considerations that are “flexible" in treating race or ancestry as a "plus." But this can be a distinction without a significant difference. For most professional schools, the pool of qualified minority applicants is shallow. Schools that dip too deeply will produce striking disparities between the test scores and academic records of minorities and whites they accept. At some point such disparities must be prima facie evidence of a quota, whether it is acknowledged or surreptitious.

"STATISTICAL PARITY"

The Bakke decision does not necessarily mean the Court will say that reverse discrimination in employment and awarding contracts is "necessary" to a "substantial" state interest. But the Court may not seriously impede the bureaucratic drive to transform the core concept of American justice from "equal opportunity for individuals" to "statistical parity for government-approved groups." There is, indeed, a substantial state interest in broadening membership in the middle class, and especially in professions. But the Fourteenth Amendment guarantees equal protection to "persons," and any reverse discrimination grants special entitlements to preferred groups. Nevertheless, the Bakke decision will leave unscathed an array of programs by which the government encourages or compels public and private institutions to

consider ethnic quantities more, and individual qualities less, when conferring benefits.

In 1945, the Court seemed on the way to saying what Congress subsequently seemed to say in the 1964 Civil Rights Act: race is an inherently unacceptable basis for state action. But now, in the Bakke case, the Court has refused to find that principle in the 1964 act, and the Court rejected that principle in cases before Bakke. For example, it held that states can tailor redistricting plans racially to create or preserve legislative districts that enhance the electoral power of preferred minorities (in the particular case, blacks and Puerto Ricans). The plan in question diluted the electoral strength of Hassidic Jews who do not enjoy government preference.

WARDS OF THE STATE

Reverse discrimination began as a means of ameliorating the condition of blacks, but it was equally claimed as a "right" by groups defined by race, ancestry or sex. It is demanded in spite of the fact that it devalues the achievements of its beneficiaries and stigmatizes them as wards of the state, unable to compete. This taint is not disguised by tactical euphemisms, such as saying that employers must "differentially validate" employment tests when they are required to set lower passing scores for preferred minorities than for whites. Whether called "affirmative action" or (as in the 1976 Democratic platform) "compensatory opportunity," reverse discrimination, and the quest for statistical parity for "underrepresented" groups, involve what Prof. Ben L. Martin calls the "sensory" theory of representation: "only personal qualities crude enough to be obvious to sense perception, such as skin color, language, or sex, are acceptable bases of representation." Martin explains reverse discrimination in terms of "the foot-race analogy":

"In a fair race, none is disadvantaged at the starting line. But if all begin with equal advantage, then all should finish together, because contemporary liberalism leaves virtually no personal quality-not character, personality, motivation, self-discipline, or any other personal trait-as the responsibility of the individual."

The premise behind reverse discrimination is this: an unfair start can be inferred from an unequal outcome. The traditional American premise is this: the equal status of citizenship is the basis on which a structure of inequality should be built by a population in which talents are neither equally distributed nor equally rewarded. Reverse discrimination is a betrayal, not a fulfillment, of American values.

John Hart Ely

The Constitutionality of Reverse Racial Discrimination

... If we are to have even a chance of curing our society of the sickness of racism, we will need a lot more black professionals. And whatever the complex of reasons, it seems we will not get them in the foreseeable future unless we take blackness into account and weight it positively when we allocate opportunities. But that must mean denying opportunities to some people solely because they were born white. Either way, it's no musical, and I confess I have trouble understanding the place of righteous indignation on either side of this wrenching moral issue.

On the surface at least, the constitutional issue is also quite troubling. We would not allow a state university to favor applicants because they are white, not even an iota, whether it called the adjustment a quota, affirmative action, or anything else. To allow it to favor applicants because they are black seems to be countenancing the most flagrant of double standards.

There is some authority, however, for the permissibility of "benign" racial classification. Closest to the mark, perhaps, is the Supreme Court's dictum in Swann v. Charlotte-Mecklenburg Board of Education, making

Source: University of Chicago Law Review 41 (1974). Reprinted by permission of the publisher. Notes and citations are omitted in this edited version.

The Constitutionality of Reverse Racial Discrimination 209

explicit its view that a local community may bus children according to race, if it wishes, to remedy school segregation caused by residential patterns. No obvious distinctions come to mind by which voluntary busing plans can be distinguished from other "benign" discrimination. First, although the contrary claim is voiced all too frequently, it is incorrect to say that no one is hurt by busing. Children can be hurt by busing, not simply by the inconvenience of the transportation process itself, but also by the transition from a school environment in which they have grown secure to strange surroundings in which they are likely to find themselves in a racial minority for the first time. Second, the argument that busing hurts neither race more than the otherwhich may or may not be true, depending on the particular plan-is foreclosed, and rightly so, by cases like McLaughlin v. Florida and Loving v. Virginia. The fact remains that busing hurts people precisely because of their color. Third, it might be contended that, busing or no busing, every child will go to some school, whereas a preferential-admissions program for a given law school will mean, after its effects have trickled down the entire law-school hierarchy, that someone will be completely denied the opportunity to go to law school because he is white. But even assuming this is so, it points to a difference in degree that probably should not go to the constitutional point. Places in desirable public schools are also scarce resources: an opportunity to attend some school is not the equivalent of an opportunity to attend the most desirable school in the area.

The problem in relying on precedent here is that the Court has never told us what the constitutional point is. Voluntary busing plans may, for all we know, be approved by the Court for any of four reasons: (1) the state's goal, racial integration, is a "compelling" one; (2) the use of a racial classification serves that goal perfectly and not approximately; (3) such plans are benignly motivated and therefore not "suspect" in the first place; or (4) the Court believes that even the most apparently "de facto" residential segregation has a bit of state action in its family tree, and that since busing has been imposed as a remedy for de jure segregation there would be no point in forbidding school boards to adopt similar methods. Or it may be-and the delayed dodge of DeFunis v. Odegaard strongly suggests this possibilitythat the Court simply cannot agree about the significance of its constitutional precedents.

The standard constitutional defense of preferential treatment for blacks accepts the principle that racial classifications are suspect and therefore subject to special, or unusually demanding, scrutiny. But that does not mean, the argument continues, that racial classifications are necessarily illegal: they

210 JOHN HART ELY

can be justified, but only on the basis of a compelling state interest. It is true that the imposition of a compelling state-interest requirement has generally been a prelude to invalidation. But surely, the argument concludes, the promotion of racial integration must be compelling enough. The words certainly flow in logical sequence, but simple assertions of relative importance can never wholly satisfy; one might again respond "double standard," were "no standard" not obviously more appropriate.

I shall argue that reverse racial discrimination can be constitutional, but for reasons quite different from those in the conventional account. Rather than asserting that the demands of "special scrutiny" can be met-an assertion neither the Court nor anyone else has given us criteria for evaluating-I shall suggest that "special scrutiny" is not appropriate when white people have decided to favor black people at the expense of white people. On one level there is a double standard here too: whites can do things to whites they could not do to blacks. But on another, the principle I propose is a neutral one: regardless of whether it is wise or unwise, it is not "suspect" in a constitutional sense for a majority, any majority, to discriminate against itself.

1

The unconstitutionality of all racial discrimination, malign and benign alike, is sometimes urged on the ground that the Fourteenth Amendment, although it does not mention race, was enacted largely to outlaw racial discrimination. But the express preoccupation of the framers of the amendment was with discrimination against blacks, that is, with making sure that whites would not, despite the Thirteenth Amendment, continue to confine blacks to an inferior position. That this is the amendment's history surely cannot conclude the matter; given the historical context, discrimination against blacks is all the framers would have been concerned about, and the equal-protection clause has rightly been construed to protect other minori. ties. But at the same time, the amendment cannot be applied without a sense of its historical meaning and function. Responsible inquiry must seek to determine the reasons why courts give unusually demanding scrutiny to classifications by which the dominant white majority has advantaged itself at the expense of blacks, and to what extent those reasons apply where the majority chooses to disadvantage itself in favor of blacks.

As a prelude, it may be useful to examine the manner and rationale of the ordinary ("rational relationship") review accorded ordinary ("nonsuspect") classifications under the equal-protection clause. Consider a familiar