Racial Preference

• Author: Jeremy Rabkin
• Pages: 2109-2110

Page 2109

Debate about racial-preference policies stirs particularly strong passions because it evokes one of the central animating concerns of liberal constitutionalism?its opposition to any system of hereditary castes. But there is little agreement today about what the constitutional principle of equality actually requires.

Some version of racial equality has always been insisted on, at least since the ratification of the FOURTEENTH AMENDMENT. Even in the 1890s, when the Supreme Court acquiesced to racial SEGREGATION in the South, it insisted that the separation of the races should not be understood to "imply the inferiority of either race" or be taken as a sign of governmental preference for one race over another. At the same time, however, the Court observed in PLESSY V. FERGUSON (1896) that "in the nature of things," the Fourteenth Amendment "could not have been intended to ? enforce social as distinguished from political equality.?" The Court treated racial bias and inequality among private citizens as equivalent to class antagonisms between rich and poor or to sectarian tensions between rival religious faiths?facts of life that a constitutional government could not expect to suppress.

For a brief period following the modern Supreme Court's ruling against school separation in BROWN V. BOARD OF EDUCATION (1954), there seemed to be an emerging consensus that equality would, after all, be best served by dismantling all racial distinctions in public law. Thus, the historic CIVIL RIGHTS ACT OF 1964 prohibited, in general terms, "discrimination on the basis of race," rather than discrimination against blacks or other racial minorities in particular. But, among other things, the 1964 legislation sought for the first time to prohibit EMPLOYMENT DISCRIMINATION throughout the American economy. Was this done to enforce a new ideal of social indifference to race or to improve the economic condition of depressed minorities?

Legislative history might be cited to support either view, but the latter view largely prevailed in federal enforcement policy. By the early 1970s, federal officials had come to define RACIAL DISCRIMINATION as any employment standard that disproportionately excluded minority applicants, regardless of the employer's intent; in this and other ways, government policy, with approval from the courts, pressed employers to redefine their hiring and promotion policies to secure "appropriate" percentages of employees...