Justice and race-conscious remedies

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A RECENT document approved by chairman Clarence Pendleton and two other Reagan appointees on the United States Civil Rights Commission blasted the Supreme Court for its decisions sanctioning race-conscious remedies. While the report failed to garner majority support of the commission, it did make one thing clear: Five consecutive rejections by the Supreme Court of the Reagan proposal to limit remedies to identifiable victims will not prevent Reagan civil rights followers from arguing that the current law is wrongly construed, morally questionable, and historically at odds with the original goals of the civil rights movement. Rights advocates must resist the temptation to respond to such remarks by simply quoting from recent favorable high court decisions. As the battleground shifts from the courtrooms to the hearts and minds of the American public, civil rights advocates must be willing to demonstrate that Ronald Reagan's colorblind absolutists have neither law nor justice in their corner.

Despite the substantial rhetorical appeal of advocating absolute colorblindness, at least one gaping hole exists that should allow the public to see through Reagan civil rights dogma: A colorblind, ``identifiable victim'' standard tends to reward and perpetuate the most long-standing systems of past discrimination. This fact can be best illustrated by the following historical hypothetical:

Imagine it is May 1963 and the all-white Police and Fire Departments of Birmingham, Ala., are about to unleash police dogs and fire hoses on Dr. Martin Luther King and his nonviolent followers. Suddenly, Birmingham's bigoted sheriff, Bull Connor, overcome by the moral force of the marchers, announces that to remedy its total exclusion of blacks from its ranks, his department would make a temporary, conscious effort to hire as many blacks as whites.

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Sound like a miracle? A cause for celebration? Were the Reagan Department of Justice in power, such voluntary, remedial action would be cause for a ``reverse discrimination'' suit against the Birmingham police force. This conclusion illuminates the perverse logic of limiting remedies to identifiable victims: The greater the past discrimination, the less will be the corrective remedy. If an employer, for example, posts a sign or makes it known that ``no minorities are wanted,'' minorities will obviously be deterred from even applying for such jobs. Where no minorities have applied, no identifiable victims exist, and thus no corrective remedies are possible under the identifiable-victim standard. The very effectiveness of past bigots is systematically rewarded.

RACE-CONSCIOUS remedies are thus needed, not to further any philosophical notion of ``group rights,'' but because they are the only means of addressing invidious group harms where the very effectiveness of past discrimination has made the identification of individual victims impossible.

The hypothetical involving Birmingham's racist sheriff also illustrates the fallacy of contending that all race-conscious measures are pernicious, regardless of their intended purposes. Our historical animosity toward racial distinctions is fueled not by abstract notions but by the blatant reality of an entrenched majority using race for the purpose of excluding and subjugating minorities to a position of second-class citizenship.

Race-conscious remedies - such as that suggested in the Bull Connor example - are designed to include minorities in the mainstream and to hasten the day where first-class citizenship and a truly colorblind society are a reality. To confuse using race to exclude and stigmatize minorities with using race to correct the effects of past injustice is to elevate dictionary definitions above indisputable history in defining what racial discrimination has meant in our national experience.

Furthermore, the claim that affirmative action marks a departure from the original goals of the civil rights movement is mistaken if not manipulative. Such arguments are based on the fact that at times where race consciousness was synonymous with the systematic oppression of blacks, some civil rights advocates demanded ``colorblind laws.'' It strains credibility, however, to pull such quotations out of their historical context as proof that such crusaders would have opposed race-conscious efforts to remedy the gross injustices they were fighting.

One example of such manipulative quoting concerns John Marshall Harlan's statement that ``our Constitution is colorblind.'' Reagan officials have contended that this quotation from Justice Harlan's famous dissent in Plessy v. Ferguson should be interpreted as a rejection of all race-conscious remedies. Read in its full context, however, it is clear that Harlan - who served under President Rutherford B. Hayes - was appalled not by the abstract notion of race consciousness, but instead by the stark reality of state-imposed second-class citizenship. There is in this country no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is colorblind and neither knows nor tolerates classes among its citizens.

Finally, some have maintained that whatever its moral justifications or intended purposes, affirmative action should be banned because of the harm that it inflicts on innocent whites. Such critics, however, overlook the fact that if all race-conscious remedies are outlawed, equally innocent black communities will be forced to suffer for longer periods the very disenfranchisement and underrepresentation that was intended by past racists.

Instead of choosing to ignore entirely the interests of either innocent blacks or innocent whites, the Supreme Court has sent the country the following message: While pervasive past discrimination often compels race-conscious relief, such remedies should not overly burden the legitimate expectations of innocent third parties. The message should inspire most Americans to realize the importance of both addressing past discrimination and devising means for equitably sharing the costs of such remedies.

The approach suggested by the Supreme Court in its recent affirmative-action cases is worthy of the support of the public and all of the members of the US Civil Rights Commission, not just because it's the law, but because it represents a fair and just means of grappling with one of our society's most complex moral and constitutional dilemmas.

Gene B. Sperling helped represent respondents in a recent affirmative-action case before the Supreme Court of the United States.

In the opinion-page column ``Justice and race-conscious remedies,'' June 22, the statement ``There is in this country no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is colorblind and neither knows nor tolerates classes among its citizens,'' should have been attributed to Justice John Marshall Harlan, not to the author of the article.

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