The Three-prong Test

Nonetheless, discussions concerning civil rights still largely revolve around a grievance-legislative model. And one is effectively excluded from such discussion unless you continue to address it in those terms. The same three-prong test is always applied to gauge whether one is truly committed to the cause of civil rights.

That test is: A commitment to what has euphemistically been called affirmative action; a view of civil rights as group rights, not individual rights; and entitlement and reparations as global remedies for past wrongs. Failure to pass at least one prong of this test is cause for banishment from the discussion.

The recent dustup at Harvard, at least as it has been reported, is just one example of the mindset that views commitment to affirmative action as a barometer for commitment to civil rights and minority advancement. If you are not sufficiently committed to one of the three prongs, you are necessarily unqualified to even engage in the civil rights discussion--and this is the primary reason why civil rights discussion has not advanced in a meaningful way in two generations and has, in effect, become stale and moribund.

Many who would otherwise be expected to be engaged in the civil rights debate and could bring substance to it are marginalized or feel the need to bow to political correctness because of their heretical views.

So the cause of civil rights has lacked innovative approaches because the debate has been driven by the three prongs. But there are three problems with the three prongs. The first problem was succinctly articulated by then-candidate George W. Bush during the 2000 presidential campaign. The three-prong standard promotes the "soft bigotry of low expectations." Of course, the soft bigotry of low expectations is not a novel concept. De Tocqueville actually hit upon it in 1828 when he said:

The species of oppression by which democratic nations are menaced is unlike anything which-ever before existed in the world. It does not tyrannize, but it compresses, enervates, extinguishes and stupefies a people until each nation becomes nothing more than a flock of timid animals of which the government is the shepherd.

An adherence to a civil rights model embracing affirmative action, group rights, and reparations is a species of oppression. It does enervate, extinguish, and stupefy. And if there is one quibble with the phrase "soft bigotry of low expectations," it is that the bigotry is not soft. It's pernicious, it's virulent.

Make absolutely no mistake: Those of us who call ourselves conservative strongly favor affirmative action, that is, affirmative action as originally conceived before it metastasized into a racial spoils system consisting of preferences, quotas, and set-asides. True affirmative action is a positive outreach to those who, by virtue of minority status, have been left out of mainstream opportunities.

But preferences are the perfect example of soft bigotry. Whether in government contracting or school admissions they not only discriminate, but promote discrimination against their very beneficiaries. Glenn Loury once used an economic model to show that preferences "alter the terms in which employers and workers (or schools and students--governments and contractors) interact with each other so as to perpetuate, rather than eliminate, existing disparities and productivity between minority and majority populations."

Loury notes that this is true because the beneficiaries of preferences can see that because of them, their grade point average or SAT scores need not be as high to gain admission, and workers need not have a level of skill equal to their white comparatives to get a particular job. Such individuals therefore have less incentive to invest in performance-enhancing studies or skills. This perpetuates the racial skill differential, which in turn perpetuates the stereotype of the incompetent "affirmative action baby." Remember, it used to be that blacks were held to impossibly high standards. Now, to the extent any standard can be discerned, they seem invariably to be low.

Loury's theory has considerable empirical support. Remember some of the amazing statistics emerging from Hopwood v. Texas and similar preference cases. Robert Klitgaard reported that 25 years ago, 27,470 whites scored 650 or above on the Graduate Record Exam; only 143 blacks did so. Whites were 30 times more likely to score above 650 than blacks.

The number of blacks with LSAT scores above 600 and a 3.25 grade point average was 39 compared with 13,151 whites. Whites were 50 times more likely to meet the threshold.

Anyone who has seen the astonishing report on college admissions issued by the Center for Equal Opportunity last year knows that things have not changed. And just this past week, the state of New Jersey reported that 78 percent of white students were proficient in math, science, and language versus 35 percent of blacks.

Preference proponents have long argued that one of the principal reasons for the disparity in scores is that standardized tests are culturally biased. But we now know that there are a number of problems with this argument. Over the last 30 years these tests have been reworked to eliminate the alleged biases, yet the statistical disparities remain. Moreover, if they were indeed culturally biased, the tests would tend to underpredict or underestimate actual minority performance, but instead they have historically done just the opposite. Finally, it remains puzzling how the tests can be biased against the most "American" of ethnic groups--the groups that actually drive the culture--yet not be biased against, for example, Korean immigrants who speak English as a second language and who have not been immersed in the culture.

Preferences accorded to certain minorities result in some minorities being admitted to schools for which they are poorly prepared. The result is high dropout rates.

The fallout from Proposition 209 is a stark example of this phenomenon. Immediately after its passage, the numbers of blacks and Hispanics at elite California schools plummeted and racialists were in a tizzy, pronouncing this an educational holocaust. But then a funny thing happened: the number of blacks at less prestigious schools climbed prodigiously. What was happening was quite obvious to all but the experts. Students were self-selecting. As Dirty Harry said in Magnum Force, "A man's got to know his limitations." People inherently know at what level they can compete. This makes students more likely to graduate. Some like to celebrate the number of minorities being admitted, regardless of whether they emerge with a degree. A better measure is how many graduate and become productive members of society. It is a cruel hoax to place a poorly prepared student in an academic environment in which he cannot compete and call it affirmative action. It does nothing but insure failure, promote resentment, and enforce stereotypes.

But getting back to the three prongs. The second problem with them is that they inherently promote disunity and Balkanization instead of unity. They encourage us to count by race and to be more race-sensitive. For a number of years now we have been urged to celebrate our "diversity." I see the bumper sticker all the time. Indeed, a while back John Leo noted that the tendency toward group identity has become so pronounced that Armenian Americans are (or at least were when he wrote this) a protected class in Pasadena. Portuguese immigrants are a protected class in Massachusetts. Louisiana protects French Arcadians. Italian Americans qualify for affirmative action at the University of New York. People of Appalachian origin are protected in Cincinnati. Transsexuals are protected in Minneapolis, Seattle, San Francisco.

This isn't diversity, it's lunacy. America's strength comes not from diversity but from unity. That has never been more powerfully demonstrated than in the aftermath of the September 11 terrorist attacks. This is one nation under God, and we do best to assiduously avoid policies that tend to separate us.

The third problem with the three prongs is that they are completely devoid of any notion of individual responsibility--and that is a function of attitude.

The fact is that the continued advancement of the condition of minorities in this country no longer has much to do with traditional civil rights.

While the condition of the black community is related to slavery, the residual effects of past discrimination, and current discrimination, and while we must always be a vigilant to vigorously enforce existing civil rights laws, improving the condition of minorities in this country is dependent on improving the economic condition of minorities, which, in turn, is largely dependent on education; which, in turn, is dependent on community standards and culture; which, in turn, is dependent on the family.

The reality in 2002 is that traditional civil rights issues are only a fringe player compared to a strong and vibrant family in promoting minority success. As Robert Rector and others indicated six or seven years ago, if you take two children who are in all respects similarly situated--same age, same income, same education--the one that comes from a two-parent family (and these figures are rounded approximations and an amalgam of different studies) is 50 percent less likely to be unemployed; 40 percent less likely to commit a crime; 50 percent less likely to use drugs; 60 percent less likely to drop out of school; 40 percent less likely to father a child out of wedlock; 80 percent less likely to be on welfare; 70 percent less likely to be poor.

A strong family may not be a civil right, but it is clearly a civil need. I defy anyone to show me a racial preference program with a similar record of success.

The Attitude of a Winner

So now it's time to embark upon a different attitude, a renewed attitude toward civil rights in the 21st century. The attitude of a winner. What does that mean?

Well, we all know winners. Let's use sports as an example. The winners may have various traits. Some run fast, jump high, or are very strong. But they all have a common attribute. They have the attitude of a winner. A winner is somebody who doesn't take things for granted, doesn't take advantage of certain preferences. For example, you cannot imagine telling Barry Bonds, Sammy Sosa, or Ken Griffey that they could have four strikes instead of three strikes like everybody else in the major leagues. They would spit in your face, justifiably. They're not going to accept that.

Or Marion Jones, Michael Johnson. You could not give them a 5-meter lead in their races. They simply would not take it. It's an insult. It's demeaning. Tiger Woods isn't going to take a mulligan. Winners do not do these kinds of things.

But in society, we're doing it constantly, and then we expect the purported beneficiaries to act as fully formed human beings. Everyone knows what's happening. It's not just psychologically bad, it's morally bad, and it doesn't work. We've been proving that over the past 30 years. Even if you don't care about whether it's right or wrong, the utilitarian argument says, abandon it. Act like a winner. Approach all civil rights issues as a winner.

How do you do that? First, let's abandon once and for all the three-pronged model of preferences, entitlements, and group rights.

Second, eliminate all racial classifications not justified by a compelling governmental interest. It's the law anyway. The mantra for a while was "Mend it, don't end it." I'm not aware--and I practice in this area of the law--of racial classifications or preferences that have truly been either mended or ended. If someone can tell me one, I'd really like to know.

Third, and this is one where there is no compromise: Vigorously enforce existing civil rights laws with all the resources at our disposal. As conservatives, we know that there must be an equal playing field, a level playing field. There must be color-blindness. But at the same time, there is an historical memory in certain communities in this country. You cannot say to somebody who is waiting for the next shoe to drop, and has reason to think that because of a legacy that his family has experienced that, look, from now on this is how we're going to be doing things. We're going to be color-blind. We're going to do things equally. There has to be an explicit fundamental assurance that everybody is committed to protecting civil rights. The multibillion-dollar structure that I talked about must work.

And, fourth, add personal responsibility to the civil rights equation. How is that done? It's done by emphasizing that we have a right not to be patronized; a right not to be treated in a paternalistic, condescending manner, like some delicate botanical specimen. But rather as responsible, competent human beings, fully formed human beings, from whom competence and responsibility are actually expected, from whom excellence is an expectation and not a surprise. We have a right not to have victimhood status forced upon us, to be society's designated losers, perpetual supplicants. In short, to be treated as winners, not as losers.

Do these things and the cause of civil rights will regain its spark, we'll shed our cynicism. We will treat each other as fellow Americans, not hyphenated Americans. We will raise the bar high, we will strive for excellence, not settle for mediocrity. And we'll judge everyone by the content of their character--and do ever in all things our damnedest and never, oh never, retreat.

Peter N. Kirsanow was appointed by President Bush to the U.S. Commission on Civil Rights in December 2001.