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Can Justice Be Unfair?

You do not take a person who has been hobbled by chains and liberate him, bring him up to the starting line of a race, and then say, 'You are free to compete with all the others,' and still justly believe you have been completely fair." So said President Lyndon B. Johnson, shortly after passage of the 1964 Civil Rights Act. Thirty years later, affirmative action policies are at the center of a national debate over justice and fairness. Where should we go from here? Following are four responses, plus an excerpt from a new book.

A Vision Betrayed: Discrimination Is No Answer to Discrimination


American presidential politics is heating up, which means that serious debate, never in abundance in Washington, will soon disappear altogether. Among the nastiest policy brawls is likely to be the battle over affirmative action. On June 1, California Gov. Pete Wilson signed an executive order eliminating many of that state's race-conscious programs. Activist Jesse Jackson is demanding that Democrats resist any retrenchment. President Clinton is attempting to steer a middle course, agreeing with everyone simultaneously.

That affirmative action will be a political football is unfortunate. Nevertheless, it is a legitimate issue. There is broad support for creating a colorblind society-a vision articulated most eloquently by Martin Luther King, Jr., who told the nation that he dreamed of a time when "little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers." Yet affirmative action, originally established to redress past discrimination against minorities, has become a vehicle for discrimination against whites and disfavored minorities, such as Asian Americans. Moreover, as affirmative action has turned into a racial spoils system, it has stoked rather than eased racial passions, driving us further from King's ideal. We must reject the invidious politics of race, whatever the justification, and focus on creating a society where people are judged on individual merit rather than group membership.

Although Christians have struggled mightily with their attitudes toward race and slavery over time, few today would disagree that Christ's command to love one's neighbors applies irrespective of a person's color or ethnicity. All people are made in the image of God and should be treated with corresponding dignity.

This standard of racial impartiality and fairness also applies to government. Scripture requires rulers to be just, while exhibiting particular concern for the most vulnerable members of society. However, extra sensitivity toward the disadvantaged does not warrant prejudice in their favor. God commanded: "Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly" (Lev. 19:15, niv). Government should not discriminate, even in favor of a disadvantaged minority.

Of course, affirmative action was originally intended to take into account the barriers faced by members of minority groups without turning race into the primary decision-making variable. And this strategy-evaluating a person's accomplishments in the light of his or her background-seems both just and sensible. The same 1400 sat score means different things when earned by someone growing up in a single-parent home in the inner city and by someone with a wealthy, intact family and a prep-school education. This form of affirmative action, based on individual rather than group characteristics, is entirely appropriate.

However, within a decade of passage of the 1964 Civil Rights Act, both the federal government and state governments were routinely transforming affirmative action into quotas and set-asides, establishing a multifaceted racial spoils system in which economic opportunity became an entitlement based on skin color. Arbitrary preferences for government contracts and other benefits, such as television licenses, spawned an industry of black front men for white corporate interests and enriched a well-connected elite, symbolized by Commerce Secretary Ron Brown. These programs have been continually and grossly abused-as evidenced by the embarrassing Wedtech scandal of the Reagan years.

Even uglier has been the growing number of cases where affirmative action for qualified minorities has turned into affirmative discrimination against qualified majorities and minorities. Asian Americans are denied entrance to the University of California system because of their ethnicity; white males face an almost impossible job market in academia. People with one-eighth Indian blood seek favored treatment as disadvantaged Native Americans. The misnamed Equal Employment Opportunity Commission fined a Chicago firm for hiring too many Hispanics and too few blacks. A high school in Piscataway, New Jersey, fired one teacher because she was white in order to make room for a black teacher. And on it goes.

This perversion of affirmative action has caused more than a flood of individual injustices. It has poisoned race relations across the country and thereby threatens to set back efforts to achieve genuine equality. Citizens resent preferences granted recent immigrants who have never suffered from discrimination. College admission officials complain about pressure to abandon standards in order to attract minorities. Many whites see any black professional as a token. Businessmen privately admit that they are reluctant to hire minorities because they fear a lawsuit if the person doesn't work out. Racial tension-in schools, communities, professions, and politics-is growing, with blacks believing that they remain victims of discrimination and whites objecting to being discriminated against in the name of affirmative action. Warns Gary Orfield of Harvard, "The civil rights impulse from the 1960s is dead in the water and the ship is floating backward toward the shoals of racial segregation." This problem will only grow more serious if race-conscious policies continue to spread.

After 30 years of affirmative action, it should be clear that discrimination is no answer to discrimination. Instead, we need to return to the ideal of Martin Luther King, who hoped for a time when people would be judged by their character rather than the color of their skin. To do otherwise is unjust and, as we have painfully discovered, socially destructive.

Re-envisioning Affirmative Action: A Christian African American Perspective


The affirmative action debate has for the most part taken place within the secularized "naked public square." However, religious groups as "communities of moral discourse" have much to contribute to this discussion. In particular, evangelicals must bring biblical principles to bear on this issue.

First, we need to look briefly at the history of affirmative action. Between 1964 and 1979, affirmative action policies were initiated for the purpose of ameliorating racial and gender inequalities. Racial inequalities were especially targeted by affirmative action policies.

Proponents of affirmative action argued that the legacy of slavery and segregation, coupled with such present realities as racial discrimination and the political powerlessness of minorities, necessitated strong remedial action, including preferential treatment of racial minorities in such areas as employment and higher education. The ideal was to enable social groups that had suffered from discrimination to compete with the more "advantaged" groups.

With the onset of the Reagan Revolution in 1980, however, public support for affirmative action policies began to wane. The white middle class, in particular, began to call into question preferential treatment of ethnic minorities. Peter Gabel depicts well the sentiment of many white Americans when he writes in the Jewish journal Tikkun (May/June 1995):

Most white people do not feel "privileged" in this society-they feel isolated, disconnected from any consistent sense of social validation, and like failures according to market criteria of success and worth. Why should they give up the modicum of potential recognition and success that affirmative action tells them they have won fair and square in order to help someone else "less qualified" whom they have not personally injured? Most white people are secretly enraged that nobody seems to care about them, and they blame themselves for not having made it on their own. You can't tell them they have a moral responsibility to sacrifice their hopes of escaping their humiliation for the sake of helping others because of sins they believe were committed long before they were born.

Proponents of affirmative action must take seriously this growing sentiment on the part of white "middle America" if they hope to make a persuasive case for preferential policies.

Not only are black and white Americans divided over the issue of affirmative action, but African Americans themselves appear to be split over the question. A new post-civil rights black leadership has emerged that is questioning the liberal orthodoxy of the old leadership elite. Such black conservatives as Thomas Sowell, Clarence Thomas, Alan Keyes, Shelby Steele, and Glenn Loury argue that affirmative action policies, though well intentioned, actually disempower the very people the policies intend to help.

Notwithstanding such divisions, it may be possible to re-envision affirmative action policies rather than severely limit them or abandon them altogether, as many have urged. In weighing those options, we need to keep in mind the biblical basis for affirmative action.

Perhaps the fundamental biblical principle undergirding affirmative action policies is God's preferential option for the poor. While this principle has been politicized by some liberation theologies, it nevertheless remains an important biblical concept. It is difficult to read the Bible and not see a divine preference for the poor, the oppressed, the marginalized, and the exploited (Ps. 107:39-41; Ps. 146:7-8; Isa. 61:1-4; Luke 1:63, 4:18-21; Matt. 25:31-46).

As evangelical social ethicist Stephen Charles Mott writes in Biblical Ethics and Social Change (1982):

Biblical justice is biased in favor of the poor and the weak. . . . The first principle of justice in distribution is the correction of oppression. This is the first concern; others follow. In assessing the level of justice in

the society, the needs of the least advantaged member must first be identified; it is from that person's position that the social system is then evaluated.

God not only executes justice on behalf of the oppressed, he also empowers them. The poor, the oppressed, the brokenhearted, the outcasts will be transformed by the gospel and subsequently empowered to rebuild the ruined cities (Isa. 61:3-4). The destitute and society's dependents will be transformed and empowered to take up their broken lives and walk (John 5:1-9 and Acts 3:1-10).

How do these theological principles become applicable to the lived experience of people in need? In Until Justice and Peace Embrace (1983), Nicholas Wolterstorff argues that the "Christian gospel cannot be applied immediately to the issues of society. A mediating analysis is imperative." Such a "mediating analysis" is reflected in what J. H. Oldham termed "middle axioms"-"attempts to define the directions in which, in a particular state of society, Christian faith must express itself" (quoted in A Survey of Christian Ethics, edited by Edward H. Long, Jr., 1967).

Since affirmative action represents a mediating analysis between general principles of justice and concrete political action, it would, in fact, represent a middle axiom. As a middle axiom, affirmative action is provisional and relevant to a given period as well as to a given set of circumstances. It may be that affirmative action policies, as originally conceived, are no longer relevant to our particular set of circumstances. If such is the case, then it might be necessary to discard those policies and construct other middle axioms. As Christians, however, we are not free to disregard the biblical mandate for justice for the truly disadvantaged.

The Uncomfort-able Middle: Asian Americans and Affirmative Action


The recent debate concerning affirmative action has placed Asian Americans in an uncomfortable position. Perceptions of Asian American success seem to confirm the belief that affirmative action is no longer needed-that America is truly an equal-opportunity society. If Asian Americans can excel without preferential treatment, why can't other racial minorities? Some even argue that affirmative action policies have become obstacles for Asian American progress. So compelling is this "model minority" theory that many Asian Americans also believe it.

But historical and contemporary realities raise serious objections to the model minority thesis, which was first explicitly articulated in the mid-1960s, at a time when Chinese and Japanese Americans were enjoying unprecedented upward mobility. Emphasis on Asian American "success stories" in the postwar years obscured a long history of discrimination. Between the two world wars, most Chinese and Japanese Amer-ican college graduates were shut out of professional-level positions and forced to work in menial jobs. During World War II, Japanese American citizens had their civil rights violated when they were relocated into concentration camps in what is now acknowledged as a racially motivated decision. If not for the civil-rights initiatives of the 1960s, discriminatory immigration legislation would have continued, and the recent influx of Asians would never have occurred.

The landmark 1965 Immigration Act, which opened the door to substantial Asian immigration for the first time in decades, favored relatively well-to-do and educated immigrants, predisposing many Asians and their children for success in subsequent decades. Thus, these preferences in immigration reform gave apparent confirmation to the model minority thesis. Had the first wave of Asian immigrants after 1965 been laborers or refugees, one wonders whether Asian Americans would still be considered model minorities.

There is evidence that Asian Americans still experience racial discrimination. Anti-Asian violence is on the rise. Media portrayals of Asian Americans are still stereotypical. Asian Americans are woefully underrepresented in university faculty and administrative positions, corporate upper-level management, and politics. Finally, the tendency to view Asian Americans as a monolithic community hides the fact that many Asian groups are mired in poverty. In sum, the model minority thesis neither accurately portrays Asian Americans nor serves their interests-precisely the point that Asian American students made this spring when they organized hunger strikes and sit-ins for courses and programs in Asian American and ethnic studies at several major universities.

Despite the inadequacies of the model minority thesis, it is routinely used to discredit affirmative action by diverting the focus of the debate away from the reality of white male privilege and buttressing the myth of a "disinterested" meritocracy. The real danger of the model minority thesis comes from those who invoke it in order to dismantle civil-rights gains and restore white male privilege to its pre-1965 level. This is daunting when one considers the Department of Labor's "Glass Ceiling Report" released last March. According to the report, white men constitute 43 percent of the total American work force, but represent 95 percent of the top managerial positions. From this, it would seem that affirmative action has not gone far enough. It is also disingenuous to invoke the model minority thesis in order to demonstrate that an unbiased meritocracy exists. Asian Americans are well acquainted with the slippery criteria used to advance equally or less qualified white men ahead of themselves (e.g., excellent academically, but not well rounded; the best track record, but lacking communication skills). Shifting promotional criteria often work against Asian American advancement beyond the middle-management level. More evidence than the generally unsubstantiated charges of "reverse discrimination" is needed to prove that white male privilege and its power to determine qualification standards no longer exists.

In the meantime, Christians need to assert that special privileges for the powerful few are a departure from biblical teaching (James 2:1-7; Eph. 2:8-9). Christian opinion leaders should also portray affirmative action accurately. From my reading, Scripture insists on supporting the powerless in order to rectify social injustices. It never acknowledges the existence of a "meritocracy" (a society that rewards the best qualified).

Moreover, to portray affirmative action as a sweeping governmental imposition is irresponsible. In fact, affirmative action is mandated only for the federal and state governments and organizations with federal or state contracts. It is strictly voluntary for other organizations. Most Christian colleges and institutions are therefore not required to follow affirmative action guidelines-and it shows. Few evangelical institutions have even come close to achieving ethnic and gender diversity on their faculty, administration, or governing boards.

Affirmative action is not a perfect policy, but its goals of correcting current racial and gender inequities are consistent with Christian convictions requiring justice and compassion for all (Isa. 1:17; Mic. 6:8; Luke 1:52-53;

1 Cor. 12:26). To dismantle affirmative action without replacing it with a policy that can better address current racial and gender inequities will create even greater polarization and despair in the future. White men have a right to be angry about job insecurity and their shrinking purchasing power. But it is the American companies and economic elites who wield the greatest power-and not affirmative action programs-that must be called to greater accountability. To use Asian Americans in order to scapegoat affirmative action misses the real source of our discontent.

The Affirmative Action Glass: Half-Full or Half-Empty?


My attitude to the affirmative action debate is fraught with ambivalence. On the one hand, I teach at a female-headed college whose faculty is 45 percent female, and where the percentage of female students on the dean's list regularly exceeds that of males. The proportion of minority faculty, staff, and students is close to that in the population at large, and ethnic tensions, while not completely absent, are handled within an institutional commitment to justice and to the dignity of all persons as made in God's image.

Not in the wildest dreams of my 1960s' undergraduate days did I envisage the gains in gender and racial justice that we now take for granted. When I contemplate such gains, the affirmative action glass indeed seems at least half-full and getting steadily fuller. Surely, from this vantage point, we can now dismantle affirmative action practices in workplace hiring and college admissions and revert to policies that are neutrally "race blind" and "gender blind."

On the other hand, being a Calvinist who believes in pervasive depravity, I note that sinful cultural habits die hard. It has been less than 25 years since the Equal Employment Opportunity Act, the Title IX Educational Act, the Equal Credit Opportunity Act, and the Pregnancy Disability Act began to level the playing field for women in the public arena. Moreover, laws are only as good as their enforcement, and the enforcement record for those just mentioned is distinctly spotty.

Blacks first came to this continent in 1619. For the following 250 years, America had slavery in one form or another, and for almost the next hundred years it practiced what historian Roger Wilkins calls "constitutionally sanctioned racial subordination." Thus, we have had a cultural ethos of racial equality for only 30 years-an ethos that now threatens to unravel in the face of massive structural economic shifts. These tempt nonblacks to circle their wagons, hoard what they've got, and take refuge in a "just world" theory: the conviction-however empirically unfounded-that people always get what they deserve in life.

In this fiftieth anniversary year of the end of World War II, Germans remain understandably nervous about the staying power of fascism, which was largely a product of the interwar years. How much more cautious, then, should Americans be about assuming that racism and sexism-much older and more pervasive problems-have been defeated by a mere 30 years of legal and social initiatives. When I look at the debate from this perspective, the glass looks barely half-full and subject to chronic leakage.

Constructing fair policies is made harder by the sheer complexity of the issue. Burdens such as gender, ethnicity, class, and age do not combine in neatly predictable ways, making it difficult to assess whether a middle-aged, high school-educated white male is more or less disadvantaged than a twenty-something, African American, college-educated female competing for the same job. However, at least in the case of college admissions, I would support a shift from ethnicity and gender to class as a basis for special consideration, once appropriate scholastic standards have been met. Writer Richard Kahlenberg (The New Republic, April 3, 1995; July 17, 1995) has shown that it is possible to design valid measures of students' economic deprivation, including parents' income, education, and occupation, as well as indices rating secondary school, neighborhood, and family-structural constraints. Such complex measures would still disproportionately benefit African-Americans, and there is no reason to believe they would work against women.

Once students are in college, I would like to suggest my own antibias practice, which I have adhered to for almost 15 years: all written work is handed in by student number only, so I do not know which paper is whose until I later match numbers with names. This protects me from accusations of prejudice and students from suspicions of favoritism motivated by professorial political correctness. It is a practice against which not a single student has ever complained, even on anonymous course evaluations.

Substituting class for gender and ethnicity is admittedly harder when it comes to adult job applications. Here I suggest we follow the advice of Shelby Steele (New York Times, March 1, 1995). Steele, a black academic, believes that affirmative action breeds skepticism about the abilities of its beneficiaries and bitterness in everyone else, and thus should be dismantled. At the same time, he recommends that discrimination by gender or ethnicity be upgraded from a civil to a criminal offense. If someone can go to jail for stealing my car stereo (Steele observes), that person should do considerably more time for stifling my livelihood and well-being by discriminating against me. "If this means there will be many trials and lawsuits," Steele writes, "so be it. When the pressure is put precisely on the evil you want to eradicate, then individuals and institutions will quickly learn not only what discrimination is but also what fairness is." This is a legal change well worth considering in a world where we dare not become triumphalistic about inherent human goodness.

Copyright (c) 1995 Christianity Today, Inc./BOOKS & CULTURE Review


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