The New Yorker Discards “Diversity,” Embraces Discrimination

I encourage readers to take a look at a new article (because the article is quite long, it will have to be a long look)  in The New Yorker by Louis Menand defending affirmative action.

I will have more — probably much more — to say about it presently, but at the moment I am trying to finish an essay on politicized historians. In order to prevent my coming comments from being as long as Menand’s article, however, I do want to get two things out of the way that Menand uses to introduce his article.

Turning to Nicholas Lemann’s The Big Test in his second paragraph, Menand writes that the man responsible for the term “affirmative action”

was an African-American lawyer named Hobart Taylor, Jr. He was a Texan, and when John F. Kennedy was sworn in, in 1961, he dropped in on the inaugural ball for Texans in order to shake hands with the new Vice-President, Lyndon B. Johnson.

They chatted, and Johnson asked him to come by his office. When Taylor showed up, Johnson handed him a draft of what would become Executive Order 10925, setting up the President’s Committee on Equal Employment Opportunity, which Johnson was to chair. Taylor read the draft and said he thought it could use a little work; Johnson asked him to do a rewrite. And that is when Taylor inserted the words “affirmative action.” He liked the phrase, he later said, because of the alliteration (or the assonance).

Taylor needed a flexible phrase because Kennedy’s committee was a bureaucratic entity with a vague mandate meant to signal the Administration’s commitment to fairness in employment. Its purview, like the purview of committees dating back to the Administration of Franklin Roosevelt, was the awarding of federal contracts, and its mandate was to see that companies the federal government did business with did not discriminate on the basis of race. The committee had no real enforcement mechanism, though, so “affirmative action” was intended to communicate to firms that needed to integrate their workforce something like “Don’t just stand there. Do something.” What they were supposed to do, aside from not discriminating, was unspecified.

Note that Menand does not bother to quote Executive Order 10925 (March 6, 1961), perhaps because it contained no ambiguity at all. It — and the virtually identical Executive Order 11246 (Sept. 28, 1965) issued by President Johnson — declared unequivocally and quite clearly that federal employers had an obligation to promote and ensure “equal employment opportunity” for all qualified persons “without regard to race, creed, color, or national origin.” [Emphasis added]

The problem, in short, is not that these executive orders were unclear. It is that Menand does not like equal opportunity. Here is his opening paragraph:

The terrible paradox of the civil-rights movement is that outlawing racial discrimination made it harder to remediate its effects. Once we amended the Constitution and passed laws to protect people of color from being treated differently in ways that were harmful to them, the government had trouble enacting programs that treat people of color differently in ways that might be beneficial. We took race out of the equation only to realize that, if we truly wanted not just equality of opportunity for all Americans but equality of result, we needed to put it back in. Our name for this paradox is affirmative action.

Leave aside (at least for now) the question of whether everything affirmative action attempts to “remediate” is in fact the effect of past discrimination. Ending discrimination, i.e., “just” equality of opportunity,’ is not enough for Menand and presumably The New Yorker. No, they demand “equality of result.” In order to end racial discrimination, on this view, we must engage in racial discrimination.

Menand calls that a “paradox”; I call it a contradiction. Chief Justice Roberts put this point best: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The New Yorker, of course, is not alone. As I discussed in Roberts In Reverse, in Sept. 2018 the New York Times published an article by a professor of education, public policy, and economics at the University of Michigan arguing “diversity” requires racial discrimination. And of course that’s right: If your  goal is a discriminatory result, then discriminatory means are by far the best means of achieving it.

Turning now to the second preliminary (to my future comments) point I want to make here: although Menand does not refer to President Johnson’s often-quoted Howard University speech of June 4, 1965, most defenses of affirmative action quote LBJ’s assertion there that “We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”

Abandoning the prohibition against racial discrimination and seeking “equality as a result” may be desirable policy — although I emphatically do not think it is — but enlisting LBJ in support of what its advocates now support is not justified, wrenching LBJ out of context as it does. Here is how I have dealt with this reliance on LBJ:

Today we are accustomed to dealing with two very different standards to evaluate discrimination: an “intent” test, which requires finding a discriminatory intent in order to determine that a particular policy is discriminatory, and a “results” test, which does not require a finding of intent to determine that some “disparity” or “underrepresentation” is discriminatory. But that distinction had not emerged in 1965 when Johnson made his speech, and when he called for “equality as a fact and equality as a result” he did not mean proportional representation or an absolute equality of goods, money, assets, jobs, whatever that people mean today by “equality of results.”

What Johnson meant by “equality,” it is quite clear, is non-discriminatory equality of opportunity. The evidence? For starters, the very next sentence in Johnson’s speech, after the oft-quoted passage quoted above, states:

For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities–physical, mental and spiritual, and to pursue their individual happiness. [Emphasis added]

True, Johnson then says in the next sentence that “equal opportunity is essential, but not enough, not enough,” but in the remainder of the speech he does not really specify what more is needed, other than various forms of assistance there is no reason to assume would be conditioned on skin color as opposed to need.

Next, three months after his Howard speech, Johnson signed Executive Order 11246, which required “affirmative action” of government contractors. But note how “affirmative action” was defined:

The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. [Emphasis added]

That’s all I have to say … about Menand’s first several paragraphs. As promised (threatened?), I shall have more to say about the rest later.

Say What?