Is the Government Engaging in Affirmative Discrimination?

A New Visions Commentary paper published March 1996 by The National Center for Public Policy Research, 501 Capitol Court, N.E., Washington, D.C. 20002, 202/543-4110, Fax (202) 543-5975, E-Mail [email protected]

In which year did the United States Justice Department contend that it is unnecessary to pass a law prohibiting intentional racial discrimination?

  • a. (1857)
  • b. (1865)
  • c. (1964)
  • None of the above. The answer is actually 1995. The absurdity into which much of the traditional civil rights orthodoxy has devolved was brought into bold Orwellian relief during Congressional hearings on the Equal Opportunity Act of 1995. [The House Judiciary and Economic and Educational Opportunity Committees have held hearings on the bill. Votes are expected within the next month in those committees.]

    The Act, sponsored in the House by Rep. Charles T. Canady (R-Fl) and in the Senate by Sen. Robert Dole (R-KS) prohibits the federal government, its contractors and sub-contractors from according preferential treatment on the basis of race, sex or ethnicity. The bill defines preferential treatment as racial/sexual/ ethnic quotas, set asides or other numerical objectives.

    Under the Act, all existing anti-discrimination laws remain in full force and effect. It is wholly consistent with the protections contained in the Civil Rights Act of 1964. Moreover, it even preserves affirmative action as it was originally conceived, i.e., before it metastasized into a Byzantine spoils system replete with clever mechanisms for counting by race.

    For example, the bill would uphold the practice of casting wide recruitment nets to snare the highest number of qualified applicants. The federal government may continue to encourage employers to recruit at historically black colleges and to advertise job openings in publications or other media directed toward minority audiences. Or the government may direct that companies establish recruitment offices or conduct job fairs in neighborhoods easily accessible to minorities. But the government is forbidden from dictating that employers set numerical hiring objectives. The goal of the bill, quite simply, is to eliminate government pressure to hire on the basis of race, sex or ethnicity.

    Enter Assistant Attorney General Deval Patrick, the Justice Department's top official in charge of civil rights enforcement. Expressing the Clinton Administration's strong opposition to the bill, Patrick recently argued before the House subcommittee on the Constitution that "the bill's prohibition against intentional discrimination, taken at face value is quite unnecessary and, in reality, potentially counterproductive."

    To maintain in 1996 that it is counterproductive to prohibit the federal government from engaging in intentional racial discrimination is nothing short of breathtaking. Yet, Mr. Patrick's comments accurately reflect the regressive, indeed inverted, reasoning of today's group rights lobby.

    Mr. Patrick launched a fusillade against the bill's prohibition against numerical objectives in affirmative action plans. He vehemently disputes that numerical standards lead inexorably to quotas.

    The Administration, to put it politely, is being disingenuous. Perhaps in the theoretical atmosphere of policy papers and law review articles numerical objectives may not necessarily lead to quotas. But in the bottom line-oriented real world, they nearly invariably do.

    And the government is fully aware of that fact. For it is the government's own scrutiny of employers' affirmative action programs that render numerical objectives inherently coercive.

    Suppose you are the owner of a medium-size business. A large portion of your business, and consequently your company's very existence, is dependent on government contracts. Government regulations require that you maintain an affirmative action program containing "numerical objectives" that set forth the number of minorities you plan to hire in each job classification. The purported aim of the numerical objective is to ensure that minorities are not "underutilized" by your company.

    One day you get a visit from your friendly neighborhood bureaucrat from the OFCCP, the agency charged with monitoring affirmative action compliance. From a cursory review of your plan, he determines that you may not have enough Aleuts employed as widget makers. You disagree, contending that you have done everything you can to hire Aleuts but have been unable to meet your numerical objective. The battle is joined.

    An audit is conducted. You hire lawyers. A blizzard of paperwork ensues. Financial penalties are imposed or, even worse, you are debarred from government work.

    Or you could take the easy way. Don't dispute the bureaucrat. Simply hire Aleuts regardless of qualifications or necessity, thereby keeping investigators and lawyers at bay and keeping your company in business.

    Most businessmen would choose to stay in business rather than embark on a Quixotic crusade against an intractable government. So they fill the ... quota.

    And the opponents of the Equal Opportunity Act know that is precisely what is happening. They know that quotas are masquerading as a benign "affirmative action." So they vigorously assail any attempts to end the fraud. For they also know the end of quotas is near, along with much of their political capital.

    -by Peter Kirsanow, a member of the National Advisory Council of Project 21, and also a labor lawyer for Leaseway Transportation in Cleveland, Ohio

    Note: New Visions Commentaries reflect the opinions of their author and not necessarily those of Project 21.


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