CLEGG: At age 50, affirmative action looks tired

Efforts increasingly counterproductive and unhinged from history

This Sunday will mark the 50th anniversary of the first time the phrase “affirmative action” was used in the civil rights context, in Executive Order 10925, which President Kennedy signed on March 6, 1961.

Ironically, it is clear that the phrase in Kennedy’s document meant taking positive steps, proactive measures - affirmative action, get it? - to make sure racial discrimination did not occur, that individuals were treated “without regard” to race by government contractors. But it did not take activists, bureaucrats and judges long to turn the principle of nondiscrimination on its head.

Fifty years is a long time. It means that about seven out of 10 Americans have never lived a day of their lives when there wasn’t affirmative action. Even if we make the generous assumption that it took a decade for the phrase to be twisted into its current meaning, that still means more than half of Americans have always lived under a legal regime in which politically incorrect discrimination was banned but politically correct discrimination was permitted, even encouraged, even required.

Some will object that while 50 years is a long time, it is not so long when compared to the length of time we had slavery and then Jim Crow laws in the United States. It also will be pointed out that racial discrimination of the politically incorrect kind still exists and that the effects of past discrimination still can be traced.

All of this is true but beside the point - for two reasons. First, as a legal matter, it is irrelevant because the Supreme Court has rejected attempts to justify racial preferences by pointing to historical, societal discrimination. Second, and as a policy matter, the court was right to do so.

There will always be people - of all colors - who will engage in racial discrimination. But as Chief Justice John G. Roberts Jr. wrote not long ago, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Continuing institutionalized racial preferences is a very bad way to address the aberrant racial discrimination of the old variety that still exists. Instead, just enforce the civil rights laws.

As for the continuing effects of slavery and Jim Crow, it is certainly possible that some individuals may be able to argue that this accounts for their current disadvantage - but not all: It will not be true for recent immigrants, for example, and many times an individual’s poverty may be a result of bad choices he or his parents or grandparents made. Conversely, it makes no sense to discriminate against, for example, white immigrants and their descendants who have no ties to slavery or Jim Crow.

In any event, there is no reason to use race as a proxy for disadvantage or advantage. The playing field may not be level, but there are people of all colors at both ends of it. There is no reason to give preferential treatment to, say, a black American who is not economically disadvantaged. Nor is there any reason to deny admission into, say, a social program on the grounds that the individual is poor for a reason that cannot be traced to racial discrimination. A child’s poverty may instead be a result of the fact that his parents just immigrated from a poor country or are alcoholics, or something else - but what difference does that make?

In addition, with every tick of the clock it becomes harder to claim that the only or even the principal cause of the racial disparities we see is discrimination. In 2011, the implosion of the black American family - not slavery - is the principal hurdle facing that community.

Consider: More than seven out of 10 black Americans, more than six out of 10 American Indians and more than five out of 10 Latinos are born out of wedlock - versus fewer than three out of 10 whites and fewer than two out of 10 Asians. See any connection between those figures and how well the different groups are doing socioeconomically? Those disparities have gotten worse, not better, as we have gotten further and further away from 1961.

There are those who believe racial preferences were needed in the 1960s, in the immediate aftermath of Jim Crow. I’m not one of them, but I respect that point of view. Now, however, it is 2011, and I respectfully suggest that times have changed.

Every day you can pick up the paper and read the latest census figures, which demonstrate that America is increasingly a multiracial and multi-ethnic country. Black Americans no longer make up the largest minority group - Latinos do. The number of Asian-Americans is growing rapidly, too. So now, according to studies my organization has published, racial preferences in universities are commonly awarded to Latinos over Asians. Where is the historical or moral justification for that?

What’s more, individual Americans - starting, most obviously, with President Obama - are more and more likely to be multiracial and multi-ethnic. Mr. Obama’s wife and, accordingly, their children, have not only black American, but white and American Indian blood; their White House predecessors, the George W. Bush family, includes Latinos.

In a society like this, it is simply untenable to have a legal regime that sorts us according to our skin color and what country our ancestors came from and treats some better and others worse depending on which silly little box is checked on various forms. There are other costs, too, besides division and unfairness, many of them borne by the supposed beneficiaries: stigmatization, stereotyping, mismatching of individuals with jobs and schools, and on and on.

Fifty years is long enough. Mr. Obama himself has acknowledged that, for example, his daughters ought not to be given preferential treatment in college admissions over a disadvantaged white kid; does he have the political courage to follow this acknowledgment with an executive order of his own? If not, will Congress follow the lead of the voters in California, Washington state, Michigan, Nebraska and Arizona and put an end to this nonsense? If the political branches will not act, will the Supreme Court reclaim the colorblind guarantees of the civil rights laws?

Roger Clegg is president and general counsel of the Center for Equal Opportunity.

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