Knowledge and decisions, p.40
Knowledge And Decisions, page 40
The English language simply could not be summoned to state any more clearly than does that very positive enactment of Congress, that these socalled 'guidelines' of this administrative agency ... are actually promulgated and being used in opposition to and in violation of this positive statute.16
Such sweeping changes in policy by oblique means is difficult to explain as the actions of legal institutions impartially carrying out judicial functions, but is much more understandable as actions against long-time adversaries now being routed.
In the 1968 case of Green v. County School Board, the Supreme Court declared unconstitutional a "free choice" enrollment plan because there was now an "affirmative duty" to eliminate dual school systems "root and branch."137 As in other areas, prospective equality of opportunity was tested by retrospective results. Because only about 15 percent of the black children had chosen to transfer to the formerly all-white school and no white children had chosen to transfer to the all-black school, there was not a desegregated or "unitary" school system, according to the Supreme Court.138 The Green decision was as different from the Brown decision as the two colors in their titles. Brown required pupil assignment without regard to race and Green required pupil assignment specifically with regard to race, so as to eliminate statistical imbalances in the results. Yet the Supreme Court treated the 1968 decision as logically derived from the 1954 decision, though no such derivation was explained-the 1954 decision being only mentioned but not quoted. The Green decision has been aptly characterized as "a masterwork of indirection" and "a rarely equalled feat of sophistry."139 The court simply pushed on from one victory to a further objective, in the manner of other unconstrained institutions continuing in a given direction, in disregard of diminishing or negative returns.
Under the Supreme Court umbrella provided by the Green decision, lower courts began requiring massive busing,"' not only where there had once been legally segregated school systems,"' but where there had never been legally separated school systems,"' or even in places where racial segregation was forbidden by state law antedating the Brown decision."' Ability-grouping within schools was sometimes struck down because its statistical effects were different for blacks than whites, and the assignment of teachers by race upheld, along with the firing of white teachers who enrolled their own children in private schools."' Only with Milliken v. Bradley in 1971 did the Supreme Court put a limit on how widely a court could require busing. By a five to four decision, it overruled a lower court's order to bus between Detroit and its suburban school districts-an area as large as the state of Delaware and larger than the state of Rhode Island.1' Still, the general principle of interdistrict busing was not repudiated,"' and there was no reversal of the trend toward massive and pervasive retrospective court monitoring of the behavior of school officials, including putting burdens of proof on them to show their innocence after purely statistical prima facie evidence.
The ability of the courts to supersede the authority of other institutions is not the same as the ability to achieve the social results aimed at. The spread of court-imposed busing has been followed by massive withdrawals of white children from the affected schools,"' increased racial polarization among the remaining "integrated" students,1' heightened violence,"' and opposition to busing by both the black and white populations at large.15' None of this constitutes effective feedback to the Supreme Court, whose members have lifetime appointments. Legislative attempts to prevent compulsory busing to achieve racial statistical balance have been turned aside by the Supreme Court by simply denying that the courts are seeking statistical balance151 (though statistical imbalance is their operational definition of "segregation"), thereby implying that the law does not apply to the cases at hand.
The supposed educational or psychological benefits of school desegregation for black children have proved elusive, though many studies have been made to try to find them,15' and some studies have triumphantly announced finding such benefits only to have the data evaporate when challenged.15' The original premise of the historic Brown decision-that separate schools are inherently inferior-was neither supported by fact nor would it stand up under scrutiny. Within walking distance of the Supreme Court was an all-black high school whose eighty-year history prior to Brown denies that principle. As far back as 1899, it had higher test scores than any of the white schools in Washington,"' and its average I.Q. was eleven points above the national average in 1939-fifteen years before the Supreme Court declared such things impossible."' There have been other such black schools elsewhere, and indeed NAACP attorney Thurgood Marshall in the Brown case was a graduate of such a school in Baltimore."" The history of all-Oriental and allJewish schools would reduce this ponderous finding to a laughingstock, instead of the revered "law of the land."
There was never a serious question whether black schools in general had lower average performances than white schools in general. What was an issue was the cause of this. A long history of highly unequal financial support for black and white schools led some to attribute the educational difference to this-but the Coleman Report 154 data showed (1) how little difference there was between black and white schools in this regard by the mid-twentieth century, and (2) how little difference financial resources or other characteristics of schools made in educational performances, Obvious genetic differences between blacks and whites led others to attribute educational differences to this,158 but data on various European ethnic groups at a comparable stage of their social evolution in American schools showed I.Q.'s similar to-and in some cases, lower than-those of blacks, even though those European ethnic groups' I.Q.'s have now reached or surpassed the national aver- age.159 One of the problems in comparing any given group with the "national average" is that the national average is itself simply an amalgamation of highly varying individual and group averages. Therefore a group may vary greatly from the national average without being in any way unique.
Again, as in the case of "affirmative action," systemic explanations (residential concentration, cultural orientation, etc.) of such social phenomena were discounted in favor of intentional explanations ("segregation," "discrimination," etc.), even though black academic performance was not historically unique either in kind or degree. Huge statistical disparities exist ed among school performances of children from different cultural groups in the past, even when all the groups were white. As of 1911, for example, the proportion of Irish children in New York City who finished high school was less than one-one hundredth the proportion among Jewish children,1fi0 and the Italians did less well than the Irish.161 Schools that were 99 percent Jewish were not uncommon, and attempts to bus the Jewish children from such schools to less crowded schools in Irish neighborhoods across town were bitterly resisted by Jewish parents162 and the Jewish press.'83 These earlier busing reforms from above were subject to feedback because they originated with elected officials, unlike later busing schemes initiated by courts and administrative agencies.
The institutional settings and institutional incentives and constraints are crucial to understanding the thrust and persistence of school "integration" or "busing" trends-especially as it has proceeded over the opposition of blacks as well as whites. In the 1960s, Blacks were fairly evenly divided, with a slight majority opposed to busing.16' In later polls in cities like Detroit and Atlanta, where busing has actually been tried on a massive scale, the majority of blacks against it was two-to-one. 161 In the well-known Boston busing case, a coalition of dozens of black community groups urged judge Garrity to minimize busing of their children,"' but neither he nor the NAACP Legal Defense Fund were deterred by such appeals. Indeed, the NAACP had gone against its own local chapters in Atlanta and San Francisco on school bus- ing.1B7 The head of the NAACP Legal Defense Fund said that his organization cannot poll "each and every black person" before instituting legal pro- ceedings,16' but this sidesteps the larger question of why the organization proceeded in a direction opposed by blacks in general. The answer may be instructive, not only as regards the NAACP Legal Defense Fund but socalled "public interest" law firms in general. The financial costs of the NAACP's litigation are not borne by its official clients but by third parties, "middle class blacks or whites who believe fervently in integration.""" In short, "the named plaintiffs are nominal only""' and the black population in whose name this is all done has little or no effective feedback. The NAACP lawyers "answer to a miniscule constituency while serving a massive clientele.""'
To the outside white world, and especially the mass media, the image of the NAACP officials and lawyers is that of "spokesmen" for blacks as a whole-though there is no institutional mechanism to make that so, and much public opinion evidence on both busing and "affirmative action" to contradict that image. Institutionally, neither blacks as a whole nor even the particular plaintiffs have any control over, or effective input to, NAACP leaders or lawyers. Here, as elsewhere, firms defined by hoped-for results as "public interest" law firms are institutionally simply law firms financed by third party interests. In the case of the NAACP, these third party interests are well insulated'from the costs of their activities by the fact that their own children are enrolled in private schools. This includes both direct participants in the school "integration" drive, like Thurgood Marshall and Kenneth B. Clark, political supporters like Senator Kennedy and Senator McGovern"' and media supporters like Carl Rowan."'
The point here is not to make a categorical assessment of the NAACP. Such an assessment would undoubtedly include many valuable and heroic contributions of the NAACP in areas of crying injustices. The question at this point is the incremental movement of the NAACP, and whether that is in the area of diminishing or negative returns. One of the NAACP's Legal Defense Fund's staunch supporters and former officials recalls that by the mid1960s "the long golden days of the civil rights movement had begun to wane""' and that legal "tools had been developed which now threatened to collect dust""' unless some new crusade was launched-as it was. Earlier, there was "simply too much else to do.""' The progression from the urgent to the optional to the counterproductive is one already seen in other organizations with mandated jurisdiction and costs paid by third parties. There is no reason to expect the NAACP to be exempt from patterns discovered elsewhere under such incentives and constraints.
Where third party costs and benefits determine the actions of so-called "public interest" law firms, and where the administrative and judicial resolutions of the issues they raise are insulated from the feedback from those directly affected, then a major shift in political and legal power has occurred away from the actual experiences and desires of the general public and toward the beliefs and dreams of small self-anointed groups-and all this in the name of "democracy" and "the public interest."
THE SPECIALNESS OF RACE Racial preferences and antipathies theoretically might be-and historically have been-dealt with by the whole range of social processes and institutions. This plain fact can be expressed, on the one hand, by saying that racism pervades American society, or can be expressed on the other hand by saying that race-based attitudes and behavior, which have affected mankind in every place and time, are handled with varying degrees of effectiveness by this society's decision-making processes and institutions as well. For "racism" to be an empirically meaningful category, there would have to be a nonracist alternative somewhere. Pending this discovery we are left with the age-old problem of judging institutions by how well they resolve the dilem mas that derive precisely from man's limitations in knowledge, power, and morality. Presumably, God and the angels do not need institutions.
Clearly, one reason for treating race as special is the historic and traumatic experience of blacks, subject to slavery, discrimination, and degradation in American society. But even if this might justify a special policy for blacks, that is quite different from justifying a general principle, applicable wherever racial differences exist, and readily extendablelogically or politicallyto nonracially-defined subsets of the population who choose to call themselves "minorities" (in open defiance of statistical facts in the case of women). This "unreflective extension of policies deriving from America's racial dilemma to other areas""' is one of the costs of decision making through those processes which by their nature make their decisions in general and precedent-setting terms. Political, administrative, and especially judicial processes tend to operate in this way. Not only does this "trivialize the historic grievances""' which served as initial rationale; it multiplies the cost of any resolution of race problems by creating principles applicable beyond the special case used to justify them.
Even within the area of race, it is by no means clear that all historic grievances have a remedy, or who specifically should pay the cost of such remedies as might be attempted. If the purpose is to compensate the pain and suffering of slavery, those most deserving of such compensation are long dead. If the purpose is to restore their descendants to the position the latter would now occupy "but for" the enslavement of their ancestors, is that position the average income, status, and general well-being of other Americans or the average income, status, and general well-being in their countries of origin? The former implicitly assumes what is highly unlikelya voluntary immigration comparable to the forced shipment of blacks from Africa-and the latter raises the grotesque prospect of expecting blacks to compensate whites for the difference between American and African standards of living. If what is to be compensated is the unpaid economic contribution of slave ancestors to American development, this is an area in which controversies have raged for centuries over the effects of slavery on the American economy-not merely over its magnitude, but over whether slavery's contribution was positive or negative."T9 Without even attempting to resolve this continuing dispute among specialists, it can be pointed out that the case for a negative effect can hardly be dismissed a priori. The South was poorer than the North even before the Civil War, and those parts of the South in which slaves were most heavily concentrated have long been the poorest parts of the South, for whites as well as blacks. Compensation based on the economic contribution of slavery could turn out to be negative. Would anyone be sufficiently devoted to that principle to ask blacks to compensate whites? Or is this simply another "results-oriented" principle, taken seriously only when forwarding some other purpose? ^~~
If the basis for special or compensatory treatment of blacks is simply a desire of some segment of contemporary white society to rid itself of guilt for historic wrongs, the question arises as to why this must be done through institutions which extend the cost to other-perhaps much larger-segments of the society whose ancestors were not even in the United States when most of this happened, or were in no position to do anything about it. Even the argument that they or their ancestors were passive beneficiaries of racial oppression loses much of its force when it is unclear that there were any net social benefits beyond the immediate profits of a tiny group of slave owners. If there were ever any net social benefits, it is questionable whether they survived the Civil War, whose costs seemed to confirm Lincoln's fear that God's justice might require that the wealth from "unrequited toil shall be sunk" and "every drop of blood drawn with the lash shall be repaid by another drawn with the sword."180
Individual compassion or a sense of social responsibility for less fortunate fellow men does not depend upon theories of guilt or unjustified benefits, but without such theories it is harder to justify compulsory exactions upon others. Nor do the others accept such exactions without resentment: some "find it just a bit ironic when they demand that we feel guilty for what their ancestors did to the blacks. ..."181 Moreover, specific compensatory activities may be opposed by the intended beneficiaries themselves-as in public opinion polls which have repeatedly shown a majority of blacks opposed to quotas.182 So it is not clear that guiltreduction activity is a net social gain. The reduction of guilt, or the expression of social and humanitarian concern, can take place through any number of voluntary organizations, which have in fact made historic contributions to the advancement of black Americans.'83
The question of who is to pay compensatory costs often has a perverse answer where such costs are imposed through administrative or judicial processes which permit little or no effective feedback. If compensation were awarded in the generalized form of money, it might at least be possible to make the costs bear some relationship to ability to pay. But much of the compensatory activity takes the form of specific transfers in kind-notably, exemption from standards applied to other applicants for jobs, college admissions, etc. In this form, costs are borne disproportionately by those members of the general population who meet those standards with the least margin, and are therefore most likely to be the ones displaced to make room for minority applicants. Those who meet the standards by the widest margin are not directly affected-that is, pay no costs. They are hired, admitted, or promoted as if blacks did not exist. People from families with the most general ability to pay also have the most ability to pay for the kind of education and training that makes such performance possible. The costs of special standards are paid by those who do not. Among the black population, those most likely to benefit from the lower standards are those closest to meeting the normal standards. It is essentially an implicit transfer of wealth among people least different in nonracial characteristics. For the white population, it is a regressively graduated tax in kind, imposed on those who are rising but not those already on top.
Where racial specialness extends beyond the historic black-white dichotomy, the anomalies are compounded. Americans of Oriental ancestry are often included in special categories. Biology and history may provide some basis for this, but economics does not. Chinese-Americans and JapaneseAmericans have long earned a higher income than white Americans. Onefourth of all Chinese employed in the United States are in the highest occupational category of professional and technical workers.184 Historically, Orientals have in years past suffered some of the most extreme discrimination and violence seen in America.185 Past discrimination in schooling, for example, is still visible in the high levels of illiteracy among older Chinese, so that despite the above average education of ChineseAmericans, they also have rates of illiteracy several times that of blacks.186 No amount of favoritism to the son of a Chinese doctor or mathematician is going to "compensate" some elderly illiterate Chinese whose life has been restricted to working in a laundry or washing dishes in a restaurant.
