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Justice and race-conscious remedies

By Gene B. Sperling / June 22, 1987

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.

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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.

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.