773 i June 7,1990 FULFLUNG AMERICA'S PROMISE A CIVIL RIGHTS SI'lUm FOR THE 1990s INTRODUCTION The U.S. Congress currently is considering legislation that its proponents claim will help to create equal opportunities f or blacks and other minorities and reduce the racism that persists in America. Far from that, however, the proposed Civil Rights Act of 1990 will preserve and expand America's apart heid-like system of racial hiring quotas and do nothing to promote the ec o nomic opportunities for what is becoming a permanent under class of minor ity Americans. Ironically, the plight of these poor is used to justiij the new civil rights law, yet the remedies proposed do not address their conc!ition. In stead, the racial quo tas encouraged by the Act at best may benefit only edu cated and upper income minorities.

Despite the civil rights gains of the last 25 years, one-third of the nation's black population remains in poverty and one-fourth of all Hispanic Amen cans live in po verty. What is needed is a civil rights bill that advances the op portunities of these and other poor Americans view of how minority Americans can gain equality of opportunity. Sponsored by Senator Edward Kennedy of Massachusetts and Representative August u s Hawkins of California, both Democrats, the bill offers 1960s-type solutions to a problem that requires a progressive new strategy for the 1990s. To be sure many of the civil rights strategies employed in the 1950s and 1960s made cru cial strides toward e qual opportunity for minority Americans.That civil rights movement and the landmark statutes it achieved broke down barriers and won widespread support among Americans. But many of the veterans of those early battles still are locked into the thinking of t hat era.They focus on racial quotas, preferences, and statistical-base racial balancing mechanisms as Outdated Thinking. The Civil Rights Act of 1990 represents ouidated a weapon for advancing minorities, rather than on crafting strategies to give minorit ies the basic tools needed to take advantage of the opportunities hard won by Martin Luther King and other leaders of the original civil rights move ment.

Fortunately, however, a new generation of minority Americans is beginning to question the relevance t oday of those old remedies.These Americans are proposing newsolutions to propel civil rights beyond the old formula and into a new era of expanded opportunity and-true equality of opportunity.The debate in Congress challenges conservatives and liberals al i ke to fashion a civil rights agenda that goes far beyond the outmoded approach of Ken nedy/Hawkins Ending a Paternalistic View. What is needed are not racial quotas and set asides, but an empowerment strategy that will unleash the capacity of individ uals who have been excluded from the rnainstream.This will require lawmak ers to view differently those whom they wish to help. For too long govern ment in practice has treated low-income Americans as people who do not have the capacity to make choices to bett e r themselves. This paternalistic view has had a devastating effect on minority communities because it has en couraged entire racial groups to believe that they cannot succeed without dis crimination in their favor and continuous aid from government.That h a s spawned a generation dependent on government, with low self-esteem and lit tle hope for effecting change in their lives. With it has come broken families soaring crime and school dropout rates, and shattered community institutions that once played a vit al role in holding minority communities together.

The liberal civil rights agenda now being advanced in Congress perpetuates the myth that the poor and all minorities are somehow handicapped and must be given special preferences and handouts to succeed.Thi s approach neces sarily embraces racial quotas and the massive social welfare programs that have failed to create opportunities for the economically disadvantaged very different premise: that low-income and minority Americans actually have enormous unfill e d capacity for achievement. By removing regulatory barriers to economic opportunity and creating an environment in which these individuals are empowered to take charge of their lives, conservatives believe Ihat -capaci_ty for-achievement will be realized.

This conservative view of progress suggests a two-pronged civil rights strat egy.The first prong is vigorous enforcement of civil rights laws. Discrimina tion remains an all-too familiar fact of life for many Americans. Government must prosecute cases of discrimination against individuals to the full extent of the law.TitleVI1 of the 1964 Civil Rights Act, moreover, should be strength ened to include a remedy of damages against those who willfully discriminate.

Building on this enforcement strategy, the c onservative civil rights strategy would call for aggressive court and legislative action to challenge modern-day Jim Crow laws that stifle minority business development. Examples include the 1931 Davis Bacon Act, which freezes out minority firms from gove r nment construction contracts, and onerous occupational licensing laws for profes Unfilled Capacity. The conservative vision of progress, however, rests on a 2 sions ranging from cosmetology to child care. These barriers to economic op portunity, seemingly neutral in their impact on the races, actually dis proportionately harm minority entrepreneurs trying to use the opportunities promised by the civil rights statutes.These remaining legal barriers, more over, pose the greatest hurdles to the poor the very p eople who have been left behind by todays civil rights movement Attacking Quotasfhis enforcement strategy also would attack racial quo tas that act as a ceiling to .housing and educational opportunities for minori ties. Strict adherence to racial and ethn i c composition ratios in public schools, for example, has capped the number of minority students who can at tend magnet schools, even when those schools are operating far below capac ity.These and similar racial quotas that limit the number of Asian Americ ans admitted to universities should be challenged by all who genuinely believe in civil rights.

The second prong of the conservative civil rights agenda is individual em powerment to control ones own life. In many respects this is the essence of civil righ ts and the key to true independence. As Robert Kennedy stated in 1966, reliance on government is dependence and what the people of our ghettos need is not greater dependence, but full independence. Conserva tives thus want to fulfill the promise of the ci v il rights movement by pursuing a legislative strategy designed to remove government-imposed barriers that stifle economic opportunities for the poor. Such barriers prevent the poor from making such fundamental decisions as where they will live and who wil l educate and care for their children.

The conservative empowerment strategy calls for enterprise zones in low income minority communities to reduce tax and regulatory impediments now frustrating the entrepreneurial spirit of those communities. It calls for a rejec tion of the public education double standard that condemns poor, primarily minority students to second-rate schools, by injecting competition into the American education system. Parental choice and education vouchers for low income families are needed to empower parents as consumers with the ability to make choices in a market that now is open only to those who are not poor.

This strategy also means vesting community groups with the power and re sponsibility to deliver services currently managed by bureaucrats. Public hous ing tenants , for example, should be allowed to manage and eventually to own St. Louis, and Washington D.C. Empowerment also means that government must make good on its fundamental responsibility of protecting its law-abid ing citizens from crime, creating an environ ment in which they can prosper.

Thus innovative ideas like a police ROTC for students from low-income com munities can be an important element of the conservative civil rights strategy their own housing-units,building on the successes of such efforts inBos ton 1 Quoted from Empowerment: A Vision Cor thc 199Os, Task Force on Empowerment, House Republican Research Committee, U.S. House of Representatives 3 17 first articulated the critical connection between civil rights and empower ment, proclaiming that any changes in civil rights law must embrace a broader agenda of empowerment. As John F. Kennedy did in 1961, Bush should issue an executive order that puts forth his vision of an empowerment civil rights agenda. This executive order should instruct the feder a l govern THE STATE OF CML RIGHTS Since its origins in the American revolutionary era, the quest for civil rights dways has meant securing for individuals the power to control their own des tinies.The past quarter-century has witnessed both major triumphs and seri ous setbacks in this quest.The civil rights laws of the 1960s opened the doors of opportunity to millions of previously excluded Americans in such crucial areas as employment, education, voting, and public accommodations.

Indeed, Washington Post c olumnist Courtland Milloy, who is black, has writ ten that black Americans are probably Americas greatest success story. En slaved a little more than a hundred years ago, there are now 2 million of them living affluently. Milloy notes that between 1967 an d 1987 the number of black households earning $50,000 or more grew from 212,000 to 764,000, an 2 Michael Novak, The Invisible Man, American Enterprise Institute, On the Issue, from Forbes, February 19 1990 4 increase of 360 percent.The total income of Amer i ca's 28 million blacks is larger than the gross domestic product of all but ten nations? Since the mid 1960s, moreover, the number of African-American elected officials has quad rupled. And black politicians now govern four of America's six largest cities .

In recent years, however, the focus of many civil rights policies has shifted from securing equal opportunity to securing equal outcomes among racial and ethnic groups, through quotas, set-asides, busing, and welfare. Though ad vocated as temporary measu res necessary to undo rapidly the lingering ef fects of past discrimination, these devices have grown increasingly en trenched! Indeed, many "establishment" civil rights leaders5 demand adher ence to this agenda as a civil rights litmus test!

Little Help for Disadvantaged. This agenda is destructive for many rea sons, but the most damning indictment delivered by critics spanning the philosophical spectrum from Charles Murray to William Julius Wilson is that it hasn't worked? Sociologist Wilson, of the Uni v ersity of Chicago, notes that while many blacks have enjoyed economic progress in recent years, for millions of others "the past three decades have been a time of regression, not progress." As Wilson explains Rlace-specific policies although benefi cial t o more advantaged blacks do little for those who are truly disadvan tional Center for Neighborhood Enterprise, a grass roots organization that promotes self-help solutions to local community problems, "Affirmati.ve ac tion does not help the black dishwashe r or the untrained black youth Adds Robert Woodson, President of the Washington, D.C.-based Na 999 A 3 aid 4 See, e.g Clint Bolick, Clianging Course: Civil Rights af the Crossroads (New Brunswick, NJ.: Transaction 5 See, e.g. Clint Bolick, 111 Wiose Name? n ie CivilRiglits Establishntenf Today (Washington, D.C Capital Research Center, 1988 6 National Urban League President John E. Jacob, for instance, asserts that "[tlhe goal of parity is the one constant that must be shared by anyone who presumes to hold a leadership position in the black community."

John E. Jacob Black Leadership in a Reactionary Era 7ie Urban League Review (Summer 1985 p. 42-43 7 See Bolick, Uianging Course, pp. 84-

91. As economists James P. Smith and Finis R. Welch recently concluded A] ffumative action apparently has [had] no significant long-range effect" on the wage gap between blacks and whites. Closing flie Gap: Forty Years of Economic Progress for Black (Santa Monica, California: The Rand Corporation, 1986 p.

95. Rather, the princ ipal effect of race-conscious strategies, according to William Julius Wilsbm, is a growmg economic schism-between-1owerSincome and higher-income-black-families."-William Julius Wilson, 77ie Tniiy Disadvantaged (Chicago: University of Chicago Press, 1987 p . 110 8 hid., pp. 110 and

42. Wilson's dismal economic prognosis was largely confirmed by the recent report of the Committee on the Status of Black Americans. Gerald David Jaynes and Robin M. Williams, eds A Coninton Desfiiiy (Washington, D.C National Aca demy Press, 1989 9 Robert L. Woodson Race and Economic Opportunity NfI Poliq Review Series, National Center for Neighborhood Enterprise, 1989, p. 3 Books, 1988 P. 53-78 5 civil rights agenda that promotes racial set-asides for the middle-class, writes Was h ington Post columnist William Raspberry; is like demanding that the so ciety supply aspirin for your uncle because your nephew has a headache. Isnt it time to abandon this bait-and-switch game in favor of truth in labeling?1 The Victims of Racial Politics The failure of race-specific assistance programs to arrest the growing cleav age between disadvantaged and more successful blacks is borne out by census data.There has been as Harvard political economist Glenn Loury has shown significant improvement in th e earnings of employed black workers over the period 1940-1980.11 But, says Loury, the average gains in black workers earnings have not been enjoyed equally by all black workers. In fact, earn ings inequality within the black population has increased durin g the last 25 years, and remains greater than income differentials among white workers Fact: In 1959, the bottom 40 percent of black men earned 8 percent of the total earnings of all black men. By 1984 that bottom 40 percent earned only 4 percent of total e arnings. Conversely, the top 20 percent of black men in 1959 earned 50 percent of total blacbrnale earnings. By 1984 this same 20 percent earned 60 percent of the total Fact: From 1970-1986, the proportion of black families with incomes over 35,000 grew f r om 15.7 percent to 21.2 percent, and the proportion with in comes over $50,000 nearly doubled, from 4.7 percent to 8.8 percent. Yet dur ing the same period, the proportion of black families with incomes of less than $10,000 also grew, from 26.8 percent to 30.2 percent.

What is the cause of such disparities? If racism were the answer, it would present a barrier for all blacks. And as Loury concludes, [E]mployment dis crimination is not a major factor. Rather, he points out, such practical fac tors as educat ion contribute significantly to income differentials among blacks as well as between blacks and whites. Annual earnings of college-edu cated black males, for example, rose by 6 percent relative to whites between 1969 and 1984.The disintegration of the tra d itional family among poor blacks, however, accounts for much of this disparity: The poverty rate for black families headed by a single mother is 50 percent more than four times the rate for intact, two-parent black families. The median income of two-par e n t black families now is 88 percent that of comparable white families, and the-disparity-is-closing at a-rated -5-points-a year 13 10 Playing on White Guilt, Wasliirigfoti Posf, May 14, l!I90 11 Testimony of Professor Glenn C. Loury, before the Committee o n Labor and Human Resources of the U.S.

Senate, concerning S. 2104, the Civil Rights Act of 1990, February 23,1990 12 Ibid 13 Restoring the Black Family, Furllily (The Family Research Council), September/October 19

89. Woodson OF. cit p. 11 6 Fact: Betwee n 1960 and 1988 the percentage of black women aged 15-44 married with a spouse present in the household declined from 51.4 percent to 29.1 percent. For whites, the decline was 69.1 percent to 54.5 percent. Be tween 1960 and 1988 the percent of black child r en living with a black married couple fell from 67 percent to 38.6 percent, while the number of black chil dren living with a never-married person rose by more than 1400 percent from 2.1 percent to 29.3 percent. By 1988,61.2 percent of black children were born to an unmarried ~0man.l Liberal solutions of quotas, forced integration, and other race-based ap proaches to civil rights clearly do not empower most blacks. Black men, par ticularly, are even more alienated from the economic mainstream.The last 25 y e ars, for example, have witnessed a pronounced downward trend in the num ber of black men participating in the labor force. Fact: In 1962, almost 60 per cent of young black males were employed, but by 1985 only 44 percent were employed.15 The reason for th i s dramatic decline was not that jobs disap peared in fact, it was a period of remarkable job creation. Nor is racism the culprit. The principal destructive influence was a burgeoning welfare system that subsidized family breakups and nonemployment Victim I dentity. Liberal civil rights policies also have had a more insidious effect on the economic advancement of blacks. Shelby Steele, Associate Pro fessor of English at San Jose University, has written that the prevalence of ra cial quotas and preferences ha s ingrained in blacks an identity of themselves as victims.This identity as victim, argues Steele, who is black, perpetuates a sense of low-self esteem among blacks and a feeling of powerlessness, which stifles individual initiative and responsibility. Wri t es Steele Social victims may be collectively entitled, but they are all too often individually demoralized. Since the social victim has been oppressed by society he comes to feel that his individual life will be improved more by changes in society than by his own initiative. Without realizing it, he makes society rather than himself the agent of change.The power he finds in victimization may lead him to collective action against society, but it also encourages passivity within his own life Steele nota that - after the death-of Martin Luther King;the civil rights movements message of equal opportunity was supplanted by a focus of blacks as victims entitled to special reparations from white society. The 1964 civil rights bill, writes Steele, was passed on the u n derstanding that equal 14 Loury. op. cit 15 Novak, op. cit 16 Shelby Steele, Im Black, Youre White, Whos Innocent, Hu/pen, June, 1989 7 opportunity would not mean racial preference. But in the late 1960s and early 1970s, affirmative action underwent a rem a rkable escalation of its mission from simple anti-discrimination enforcement to social engineering by means of quotas, goals, timetables, set-asides and other forms of preferential treat ment.17 These policies remain the agenda of the liberal civil rights establish ment RecentSupreme Courtrulings,-however, maysignal a turning point for the future direction of civil rights policy. In a series of decisions last year,ls the Court called squarely into question the use of racial quotas as well as the as sumptio n s on which race-conscious measures are based.lg Yet old guard civil rights leaders and their congressional allies reacted to these rulings swiftly and predictably, condemning them and urging corrective legislation. Sena tor Kennedy and Representative Hawk i ns introduced legislation to overturn most of the rulings and further expand the scope of the civil rights laws WHY THE KENNEDY/HAWKINS BILL FAILS MINORITY AMERICANS Undergirding the Kennedy/Hawkins legislation is the assumption that every significant dif f erence in statistical outcomes among racial orl o,thnic groups is attributable to discrimination and curable by quotasm This as sumption is flawed. While discrimination remains a serious obstacle for mi norities, it is not the primary barrier to opportuni t y afflicting the economi cally disadvantaged. Observes the National Center for Neighborhood Enterprises Woodson, Vague cries for peace, jobs, and freedom are mean ingless when a permanent (and growing) underclass of more than one-third of all black Americ a ns, unskilled and undereducated, remains untouched by civil rights gains, the war on povert increased black political power, and a mammoth social welfare industry. Civil rights policies that fail to recog nize this fact and to confront real obstacles to p rogress are doomed to repeat the failuresof the past.

At the heart of the Kennedy/Hawkins bill are provisions that will make it all but impossible for employers to defend themselves against a claim of dis criminatory hiring pr actices. Under the proposed law, a business that fails to h 17 Shelby Steele, A Negative Vote on Afirmative Action, New York limes Magazine, May 13,19M 18-City ofliichntond-v.-JA. Cmson Co 1W S.Ct. 706 (1989)(striking down Richmonds minoritycontract set-a s ide program Wards Cove Pockirtg Co. v. Antoriio, 1W S.Ct. 2115 (1989)(making it less dificult for employers to defend employee selection practices against discrimination charges that are based solely on statistics without evidence of discrimination Mod11 v . Wk, 109 S.Ct. 2180 (1989)(allowing challenges to racial quotas contained in consent decrees by those who are affected and Pottersoti v. McLeon Credit Union, 109 S.Ct. 2362 (1989)(holding that the Civil Rights Act of 1866, which prohibits discrimination i n the making of contracts, does not cover instances of racial harassment 19 See Clint Bolick, The Supreme Court and Civil Rights: A Challenge for George Bush, Heritage Foundation Backgroiiridcr No. 728, September 28,1989 20 See Bolick, Cliortgirtg Course, pp. 56-60 21 Woodson, op. cit p. 3 8 meet certain racial and ethnic percentages in the composition of its work force must prove that such disparities are not due to discrimination.This is a reversal of normal legal standards. Usually, a claimant must prov e that a de fendant has violated some legal standard in order to prevail. Under the pro posed legislation, however, the claimant need only show that racial hiring per centages have not been met, and the burden then shifts to the employer to prove the absen c e of discrimination.Thus the employer,is presumed guilty un less innocence is proved Insurmountable Standard. In addition to this shifting of the burdens, the I I legislation proposes another hurdle that will make it impossible for an em ployer actually t o prove that he or she does not discriminate. Under the Ken- I -I I nedy/Hawkins bill, if the work force of a business fails to meet the prescribed racial composition, the only way that an employer can rebut the presumption of discrimination is by proving t hat his or her hiring criteria bears a substan tial and demonstrable relationship to effective job performance. This is an insurmountable legal standard, and a reversal of the Supreme Courts 1989 ruling in Wards Cove Packing Co. v. Antonio that a business need only show that a challenged hiring practice serves, in a significant way, the legitimate goals of the employer. Under the elevated hurdle proposed by the Ken nedy/Hawkins bill, such reasonable and non-racial hiring criteria as requiring a high school or college diploma could fail to meet the substantial and de monstrable test necessary to rebut a claim of discrimination. A company that merely shows that it applies the same standards to everyone, regardless of race, will be found guilty of discriminati on.

Faced with such hurdles, rational employers will turn to racial quotas as the only reasonable means to protect themselves from lawsuits. To avoid litiga tion, employers will have no recourse but to hire a certain percentage of their employees based not on merit or qualifications, but solely on the basis of race. Indeed, writing in the weekly lawyers newspaper Legd Times, liberal columnist Stuart Taylor, Jr. notes that the bill would pressure employers sur reptitiously to use quotas to improve their sta t istics. This is not a positive di rection for civil rights. As George Bush said in his May 17 Rose Garden speech on civil rights, The focus of employers in this country must be on pro viding equal opportunity for all workers, not on developing strategies to avoid litigation.

Presumption of Discrimination. Another adverse-impact of theKen I nedy/Hawkins bill would be to establish quota ceilings on the number of minorities employed in low-skilled jobs. One of the issues in the Wards Cove case was a disparity in the companys work force between the number of mi sitions. Under the proposed Kennedy/Hawkins bill, such a disparity would create the presumption of employer discrimination. The result: rather than hiring more minorities for management level positions, many employers sim ply would reduce the number of minorities employed in low-skilled positions so as to avoid the unequal percentages that would result in liability l I norities employed in low-skilled factory jobs and upper-level management po 9 CONSERI d By its narrow focus on statistical disparities and racial quotas, the Ken nedymawkins bill would codify the racial divisions that continue to fuel racial tensions between whites and minorities. Rather than equal opportunity for all, the bill would offer r acial entitlements for a select few. What is needed in stead is a positive civil rights strategy geared toward empowering all individu als with the independence they need to make the choices necessary to suc ceed, The two key elements of this new civil Fi g hts agenda are vigorous en forcement of anti-discrimination laws and progressing from the old agenda of affirmative action to a new strategy of affirmative empowerment ATIVES AND THE CIVIL RIGHTS LAWS The conservative civil rights agenda must be more than opposition to racial quotas. Conservatives must assert a strong affirmative commitment to enforc ing civil rights laws and prosecuting discrimination. Civil rights law enforce ment officials should take their lead from U.S. Appeals Court Judge Clarence Th omas, who served as chairman of the U.S. Equal Employment Opportunity Commission (EEOC) from 1982 to 19

90. Thomas demonstrated that vigorous civil rights law enforcement need not mean quotas. He reorganized and streamlined a previously ineffective agency; he established a policy of full re lief for victims of discrimination (the EEOC previously settled for quotas which employers were happy to accept); and he shifted the agencys focus away from cases involving statistics to those involving individual victi ms -the very people who could not find help elsewhere. As a consequence, Thomas was able to secure more relief for more victims of discrimination than ever before had been obtained.

The new civil rights strategy should reject quotas as an unfair and racial ly divisive remedy, and instead seek tough penalties against discriminators and full relief for victims of actual discrimination. This would require amending the employment provisions of the 1964 Civil Rights Act to strengthen dam age remedies, an approac h supported by ClarenceThomas, former Attor ney General Edwin Meese, and former Assistant Attorney General William Bradford Reynolds. In the desegregation context, conservatives should push for monetary damages instead of busing. Rather than merely reassig n ing stu dents to achieve racial balance, damages in the form of education vouchers should be a remedy available to successful plaintiffs. Currently, the preferred judicial remedy in desegregation cases are such equitable remedies as bus ing and racial quo t as.These forms of relief advance group rather than findi vidual remedies. Yet as ClarenceThomas demonstrated during his tenure at the EEOC, remedies that focus on individual relief are possible and far more effective. A remedy of education vouchers would s ecure better the goal of equal opportunity by enabling parents to choose the best education opportu nities available for their children 22 See Bolick, The Supreme Court and Civil Rights, p. 8 10 Economic Barriers. Aggressive enforcement of civil rights la w s also means pursuing litigation and legislation to remove regulatory barriers to economic opportunity. In the courts and legislatures, conservative civil rights advocates should join with members of minority groups to challenge on civil rights grounds su c h economic barriers as the 1931 Davis-Bacon Act, which prevents minority firms from securing government construction contracts. This law re quires ,that, inflated prevailing wagesn be paid on all government construc tion contracts. In practice, this has m e ant that only firms willing and able to pay uhion scale wages can secure government construction contracts. Such firms typically are large, established, white-owned businesses that can afford to pay inflated wages. Smaller, more competitive minority firms that cannot absorb such costs thus are prevented from securing the contracts, even though they can perform the work at lower cost.The law also discourages the hiring of low-skilled workers by establishing high entry-level wages. The pre dictable combined i mpact of these restrictions is the disproportionate exclu sion of minority entrepreneurs and laborers, which was an explicit goal of the Limiting Competition. Occupational licensing laws and regulations that re strict the formation of new businesses also s hould be confronted for their dis parate impact on minorities. Many of these restrictions are unrelated to pub lic health or safety objectives, and in fact often are promoted by the profes sions themselves to limit competition. Like the Jim Crow laws of a n earlier era, these laws often impede minority participation in professions and busi nesses. Taxicab regulations, for example, strictly limit the number of entrepre neurs in a business that otherwise would be easily accessible to minorities. Li censing la w s also exclude from professions those who are demonstrably quali fied, but who cannot satisfy arbitrary and formalistic requirements. These li censing restrictions commonly are prevalent in such entry-level trades and professions as cosmetology, barbering , photography, stenography, interior decorating, and pool cleaning.

More rigorous enforcement of civil rights laws also requires confronting quota ceilings in education and housing. To achieve racial balance in public schools and housing, government author ities set rigid quotas that operate to exclude minorities. Example: In California universities, Asian American stu dents are excluded from admission because they are overrepresented among eligible candidates for admission. Example: In Kansas City magnet s c hools, black youngsters are denied admission so the school district can hold seats empty for white students.25 These experiences illustrate how race-based 23 See Congressional Record-House, February 28,1931, pps. 6504-6521 24 See Dan C. Heldman, Ending Co l lege Admission Quotas Against Asian-Americans, Heritage Foundation fieciifive Meiiiomndiim No. 240, June 30,19889; Representative Dana Rohrabacher, College Admission Quotas Against Asian-Americans: Why Is the Civil Rights Community Silent? Hehrage Lechrre s No. 236 25 See Blacks sue over KC desegregation plan, nie Washirigton 7imes, July 17,1989.policies, however well-intentioned, can ultimately harm the very individuals they are purported to benefit Affirmative Action ture, it is affirmative action Conserv a tives generally have been perceived to be opposed to affirmative action. If affirmative action means quotas such opposition is warranted. But affirmative action need not be synony mous with quotas; conservatives, therefore, should not be considered adver saries of affirmative action as it was originally intended.

Affirmative action as practiced in the mid-1960s recognized that many indi viduals were ill equipped, for reasons of past discrimination to take advan tage of the equal opportunities secured to th em for the first time by the newly enacted civil rights laws. Affirmative action thus meant providing tools to en able those who had been held back by discrimination to compete effectively in the market. It did not mean racial hiring quotas.

Origin of a Term. The term first was used by John F. Kennedy in his Execu tive Order No. 10925, issued in 19

61. As Hoover Institution economist Thomas Sowell has noted, Kennedys order specifically provided that affirma tive action was not intended as a system of raci al quotas or hiring prefer ences. Instead, it was an effort to disseminate information about federal jobs to encourage previously excluded groups to apply, and to insure fairness in hiring and promotion regardless of race. Thus, Kennedy ordered federal co n tractors to take affirmative action to ensure that the applicants are em ployed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.26 Senator Hubert Humphrey, the Minnesota Democrat and archi t ect of the Civil Rights Act of 1964, also took pains to distinguish affirmative action from racial quotas. During Senate debate on the civil rights bill, Humphrey instructed his colleagues that the bill does not require an employer to achieve any kind of r acial balance in his work force by giving preferential treatment to any individual or group. But Thomas Sowell recounts that the original meaning of affirmative action, as a general attempt to inform and recruit applicants from groups long excluded from e m ployment and other opportunities, quickly gave way to its current meaning- choosing If one term exists in the American lexicon that conservatives need to recap among applicants on the basis of-numerical-group results The firm opposition to racial quotas e x pressed by most liberals in the 1960s was well founded. Quotas (sometimes called goals and timetables) could I I i 26 Thomas Sowell, Civil Riglifs: Rlietoric or Reality New York: William Morrow Company, Inc., 1984) p. 39 27 hid 28 Thomas Sowell, Weber and Bakke, and the Presuppositions of Afirmative Action, in W.E. Block and M.A.

Walker, eds Discnriiinatiori, Afimiative Acfiori, arid Equal Oppomtriity (Vancouver: The Fraser Institute 1982), p. 61 12 not accomplish the original -and still salient objectives of affirmative ac tion. All quotas do is to redistribute opportunities as part of a zero-sum game: every persons gain means anothers loss. Quotas, moreover, do not help the economically disadvantaged gain the skills necessary to compete ef fectively.Thus affirmative action comprised solely of quotas has aided better qualified minority candidates while not addressing the real-world needs of people outside the economic mainstream As William Julius Wilson argues future affirmative action must consist of effo r ts targeted to truly disadvan taged individuals regardless of their race or ethnicity CONSERVATIVES AND EMPOWERMENT The second element of a new civil rights agenda is individual empower ment. This empowerment means giving individuals the opportunity to re a lize their potential and achieve economic independence by giving them the power to choose the conditions under which they live such as how their family will be educated and where they will live. Liberal social welfare programs do not empower the poor. Rat h er they empower government and an industry of so cial service providers that prospers by managing the lives of the poor.The conservative idea of empowerment, by contrast, derives from the movements roots in market economics and classical liberalism -power not as control over others but as the freedom to control ones own affairs, the essential in gredient of liberty.

A civil rights strategy based on empowerment focuses on enabling individu als to choose how they will improve their condition.The aim is to he lp low-in come Americans by expanding opportunities rather than by merely redistrib uting them.The impetus for such efforts is not the coercive power of govern ment, but consumer choice in the market.To achieve empowerment, the new civil rights strategy m u st confront remaining systemic obstacles that prevent individuals from controlling their own destinies. At least four such obstacles exist: stifling regulation of entrepreneurial opportunities, poor public schools the welfare system, and crime All of thes e barriers disproportionately bur den people outside the economic mainstream, who disproportionately are mi norities.

An empowerment strategy to unlock the pent-up capacity of lower-income minority Americans requires many actions on several fronts. Among t hem 1) Remove obstacles to entrepreneurs. Economic liberty is a fundamental civil right. Yet this liberty to pursue a livelihood free from excessive or arbi trary interference is the for otten civil right.This right was destroyed by the 1873 Slaughter-Hou s e cases in which the Supreme Court ruled erroneously that economic liberty was not included among privileges or immunities of citi SO 29 Wilson, op. cit p. 117 30 83 U.S. 36 (1873 13 zenship protected by the Fourteenth Amendment. As a consequence, entre p r eneurial opportunities are burdened by a pervasive array of regulations at every level of government, from the 193 1 Davis-Bacon Act and federal mini mum wage laws to local occupational licensing laws and government-con ferred business monopolies.These la w s, most of which were enacted not to promote public health or safety but to limit competition, stifle the tradition of bootstraps capitalism that is Americas beacon to the enterprising poor. In es sence, these restrictions cut off the bottom rungs of the e conomic ladder, so vital to the poor and those who have suffered discrimination, thereby destroy ing traditional methods for upward mobility?l Conservatives should champion an Economic Liberty Act, which would re quire governmental entities to limit regul ations restricting entry into trades or businesses to demonstrable public health, safety, or welfare objectives.

Conservatives also should challenge as civil rights violations the most arbi trary and oppressive economic regulations?2 In this way, conservat ives not only would help complete the legal work of the original civil rights move ment, but would open the most important door to economic independence self-employment and business creation 2) Introduce parental choice into education. Education is the ke y to prog ress. It is the great equalizer of the races, the most powerful tool for eliminat ing racism. But interposed between precious educational opportunities and those who need them the most stand Americas often substandard public schools. And the grea t est number of victims of that system are those who have no other choice -the inner city schoolchildren whose opportunities for advancement are crushed at schools that seem answerable to no one. Minori ties disproportionately are the victims of Americas di s mal public school per formance. Dropout rates for black and Hispanic students exceed those for whites, especially in urban areas. In the Chicago public schools, for example the 1988-1989 school year dropout rate for whites was 13.9 percent, com pared with a 23.3 percent rate for Hispanics and a 60.9 percent rate for bla~ks.3~ These young dropouts may in one sense be making a rational 31 See Bolick, Cliunging Course, p. 94104 32 Landmark Legal Foundations Center for Civil Rights last year successfully chall e nged a District of Columbia ordinance prohibiting street corner shoe shine stands, and is currently challenging Houstons boat industry 33 Chicago Public Schools, Board of Education. Chicago defines a dropout as any student, sixteen or older who has been r e moved from the enrollment roster for any reason other than death, extended illness, graduation or completion of an equivalency program. Also included are transferring students whose records have not been requested by another public or private school. anti - jitney law and-a-Nationalpark-Service -regulation-that-has destroyed the-nativeVirgin-Islander-charter 14 choice: why stay in a substandard public school? But the tragedy is that unlike individuals of moderate and upper incomes, these low income students a nd their families have no opportunity to transfer to better schools consum ers with a choice of schools, by providing to parents a portion of the dollars spent on schooling in the form of a tax credit or voucher to purchase the edu catim thatbest -suits t h eir-childrenkneeds-Studies show that choice and corn petition.in education work, particularly.for those who have lacked the most basic educational opportunities.34 Moreover, polling shows that vouchers are especially popular among inner city minority pare nts? Returning to parents choice of, control over, and responsibility for the education of their children is the first step in expanding educational opportunities.

The successes of educational choice initiatives in such states as Minnesota and in low income communities, like East Harlem, New York, should con tinue to be highlighted and serve as a model for expanded efforts. Conserva tives, too, should craft educatio n al empowerment strategies that support and build on such educational voucher plans as that achieved in Milwaukee, Wis consin, owing to the efforts of State Representative Annette Polly Wil liams, a black Democrat who represents low-income inner city const i tuents 3) Make welfare a ladder, not a permanent crutch. The welfare system has fueled a self-perpetuating cycle of dependency, which has influenced minori ties disproportionately. Intended as a temporary helping hand in the case of the able-bodied the we l fare system not only has encouraged millions to re main on its rolls, but also in most instances has rewarded destructive behavior and penalized those who sought to become independent. Example: if a father walks out on his family, they become eligible for welfare If instead of leaving he takes a low-paying job to try to fulfill his responsibility, the family often is financially worse off America needs to empower low-income minorities and others The welfare system is particularly damaging to minorities bec a use many of these families are at the margin, where welfare is an attractive option. More over, the official leadership of the black and Hispanic communities has added to the problem by urging government to increase benefits for those on 34 See Clint Boli c k-A-Primer on Choice in Education:-Part I-=How Choice Works, Heritage-Foundation Backgrounder No. 760, March 21,1!)90 35 Alec M. Gallup, The 18th Annual Gallup Poll of the Publics AttitudesToward the Public Schools, Phi Della Koppun, September 1986, pp. 5 8,

59. A 1989 Gallupphi Delta Kappan poll found that 67 percent of non-whites favor educational choice 15 the rolls, while doing little to support proposals to reward those who strive to become independent.

The federal government should encourage economic emancipation by re ducing dependency on welfare and rewarding those who work.This strategy requires a major reform of the welfare system and anti-poverty programs to encourage independence and reward those who take their responsibilities se riously;.Amon g the key reforms needed Expand the Eamed IncomeTa Credit, which supplements the eam ings of very low-paid workers through the tax c0de.3~ This would reward work, encourage many on welfare to climb the ladder of employment, and en sure that families would m o ve out of poverty if they joined the work force Make some form of work mandatory for all welfare programs serving the able-bodied Attach a portion of the earnings of all absent fathers, married or un married, if their family is on welfare. If the father c l aims to be unemployed require him to enroll full time in a government work program Encourage home ownership among the poor through "urban home steading2rograms, and an acceleration of tenant management of public housing Enact "enterprise zone" legislation , which would reduce tax and regu latory barriers to job creation in the inner city 4) Crack down on Crime. The new civil rights agenda should emphasize the most fundamental of civil rights: freedom from crime. Personal security is the primary justificatio n for government. Government, however, is failing to protect its law-abiding minority citizens against crime.

Crime falls disproportionately on minorities, creating an additional barrier to those striving for econoinic independence and social responsibilit y. Black households in 1988, for example, were 60 percent more likely to be burglar ized and three times more likely to be robbed than white households. Black households suffer more than twice the number of motor vehicle thefts and al 36 See also, Stuart M . Butler, "Razing the Liberal Plantation: A Conservative War in Poverty in Natioiral Review, November 10,1989, p. 27; Stuart-M. Butler Welfare in Charles I Heatherly and BurtonYale Pines eds Mandate For Leadership 111: Policy Strategies for flre 1990s (Wa s hington, D.C The Heritage Foundation 1989) p. 253; Stuart M. Butler and Anna Kondratas, 0111 of the Povetry Tmp (New York: The Free Press, 1987 37 See Stuart M. Butler The Peace Dividend It Belongs to the People, Not Congress Heritage Foundation Backgroun der No. 752, February 9,1990 38 See John Scanlon Pcople Power in the Projects: HowTenant Management Can Save Public Housing,"

Heritage Foundation Backpitnder No. 758, March 8,19!lO 16 most 65 percent more incidents of aggravated assault than whites? The ro b ability of being murdered is six times greater for blacks than for whites.His panics, too, are far more likely than whites to be victims of crime. From 1979 1986, for example, Hispanic Americans were victims of violent crime at a rate twice that of non- H ispanics.4l If conservatives and the inner-city poor can make Gommon cause on any issue,-it should be-crime Strong antiscrime measures directed toward urban centers, along with meaningful protection of victims rights, form the founda tion of an effort to better secure vulnerable individuals in their persons and their property. Creating a crime-free environment in poor communities will require several changes in the law to favor the victim over the victimizer.

Among them: victims rights laws that compel cri minals to make restitution to their victims, and require prosecutors to take the victims interests into ac count in sentencing and probation. Government also should reprioritize its law enforcement strategy in poor communities. Law enforcement should focu s on preventing and prosecuting crimes against persons and property in the ghettos, and increasing penalties for such crimes.

Ridding Americas minority communities of the source of crime also will require empowerment strategies to involve communities in th e fight. One idea that merits study is a proposal current1 before Congress to create a po lice ROTC program for poor communities.

Under the plan, students would receive college tuition in exchange for serving on the police force of their community after g raduation. Such addi tions to urban police forces would free more officers to perform such vital functions as foot patrol on the streets of poor communities J2 WHAT GEORGE BUSH SHOULD DO Obviously, George Bush can do a great deal to advance a conservative strat- egy on civil rights one that will do far more to advance civil rights than the Kennedy/Hawkins legislation. He enjoys enormous popularity among both white and minority Americans.The time is ripe for a Bush-led civil rights strategy that would build on the foundation laid in the 1960s.The President thus should draw on his popularity and credibility by restoring momentum to a quest for civil rights that has strayed off course for the past generation. Al ready,-Bush hastaken an important step in-this-d i rection with-his May-17 Rose Garden speech on civil rights. In that ground-breaking speech, he vowed to veto any civil rights bill that would promote racial quotas, and he re 39 See Joseph Perkins, ed A Conservative Agenda For Black Americans (Washington, D.C The Heritage Foundation 1987,1990) pps. 31-32 40 Bolick, Cliarrging Coiirse, pp. 116-118 41 Hispanic Victimization, Bureau of Justice Statistics, January 1990 42 S. 1299, The Police Corps Act of 19

89. Sponsors include Republican Senators Specter, Hei nz, Rudman Coats, and Lott. Democrats include Senators Sasser, Bradley, Lieberman, and Dodd 17 defined civil rights to include empowerment strategies for the poor. Next, the President should 1) Veto the KennedyMawkins bill. To sign into law a civil rights bill that promotes racial quotas would be to surrender to racism. And to sign a civil rights bill that fails to include empowerment initiatives for the poorwould ig nore the civil rights of those who are struggling the most.The Kennedymaw kinsbill champio n sa failed policy agenda and does little to solve the most pressing civil rights problems. If the bill passes Congress, Bush should veto it and immediately shift the terms of the debate from quotas to empowerment 2) Issue an Executive Order on Empowerment. In 1961 President John F.

Kennedy issued Executive Order 10925 that mandated affirmative action throughout the federal government. Now, nearly three decades later, George Bush should issue a new executive order building on Kennedys vision and propelling g overnment into a new era of civil rights action.

This executive order should require all federal agencies, departments, and offices to review existing policies and regulations and eliminate those that sti fle the economic empowerment of minorities. Like K ennedys executive order, Bush should require the federal government to take affirmative action to recruit minorities and also to break down barriers to their economic lib erty. Bush should order the federal government to restructure affirmative ac tion to encouiage empowerment efforts aimed at increasing human capital and removing obstacles to the economically disadvantaged.

The Bush executive order also should require that every new government regulation be accompanied by an Empowerment Impact Statement t hat ad dresses how the regulation would help to empower low-income Americans to manage their own affairs and attain economic liberty 3) Establish a Commission on Economic Mobility. In his 1961 Executive Order, Kennedy established the Presidents Committee o n Equal Employ ment Opportunity to scrutinize and study employment practices of the Gov ernment of the United States, and to consider and recommend additional af firmative steps which should be taken by executive departments and agencies to realize more f u lly the national policy of nondiscrimination Bush like wise should appoint a presidential commission to examine contemporary ob stacles to minority opportunities, and to recommend within a specified time period-legislation designed to eradicate those obst ac1es;This effort should be similar to that which preceded the development of the Age Discrimination in Employment Act of 19

67. By establishing this Economic Mobility Commis sion Bush would lay the groundwork for opening far more opportunities for economi cally disadvantaged minorities than would the Kennedymawkins bill I I 4) Strengthen Damage Provisions of the Civil Rights Act. Under the Civil Rights Act of 1964, an employer found guilty of-discrimination need only pro vide a job and back pay to the aggr i eved party.This penalty is not sufficient to deter future discrimination. To remedy this, Bush should propose to Congress 18 amendments to the law to allow recovery of treble punitive damages against employers who willfully or persistently violate the law 5) Propose a Comprehensive Welfare Reform. Congress in 1988 enacted the Family Support Act. Touted as a major reform of the welfare system that would reduce welfare dependency, the legislation in fact is little more than an expansion of existing programs. Moreover, a Congressional Budget Office analysis-of the statute predicts that itwill-actually add people to the welfare rolls.

Bush should explain to Americans that there will be no progress in the war against poverty until there is a change in the strategy used to fight the war. He should assemble a cabinet-level task force, led by Housing and Urban Devel opment Secretary Jack K e mp, to develop a comprehensive series of welfare reforms to promote the empowerment of poor Americans 6) Coordinate Empowerment Efforts. The beginning of an empowerment infrastructure already exists. In addition to public policy organizations dedi cated t o self-help, Secretary of Housing and Urban Development Jack Kemp and Education Secretary Lauro Cavazos are pushing empowerment strategies in their agencies. In Congress, Representative Steve Bartlett, the Texas Re publican, has formed an empowerment caucu s comprised of conservative and moderate Republicans. And the moderate Democratic Leadership Council last month endorsed a policy plank calling for equal opportunity rather than equal results. These developments reflect a growing determination among conser vatives to confront civil rights issues, and a growing receptivity to what conservatives have to say.

Outside of Congress, organizations and individuals are showing what can be accomplished by poor Americans if they are given the opportunity to use the cap acities they have. The public housing tenant management movement for example, has brought dignity and hope to dozens of once crime-ridden and blighted projects. An education reform movement has spawned more than 300 new black independent schools, most of t hem created by parents and community groups in poor neighborhoods. Robert Woodsons National Center for Neighborhood Enterprise has helped to highlight the successes of numerous additional empowerment efforts nationwide, and provided techni cal assistance t o self-help groups in minority communities. And the National Association of the Southern Poor, headed by Donald Anderson, has carried the self-help message to rural Southern communities, sparking a rejuvenation of formerly crime-ridden and depressed commu nities.

George Bush needs to draw greater attention to the movement for minority empowerment. He needs to give this movement at least equal standing in the debate over civil rights, and to instruct agency officials to do likewise. As long as the perception exists that only minority leaders espousing the tired liberal agenda are legitimate spokesmen for black and Hispanic Americans, the eco nomic emancipation of these groups will be painfully slow 7) Repeal the Davis Bacon Act. The 1931 Davis Bacon Act is t h e federal equivalent of local Jim Crow laws that prevent minorities from competing for 19economic opportunities. The laws requirements that federal construction contracts pay the local prevailing wage inflates wage rates.The result: many small minority fi r ms that cannot afford to pay such inflated rates are excluded from government construction contracts. The law also discriminates against minority tradesmen who are willing to work for less than union wages. In fact discriminating against black workers see m s to have been one of the reasons for passing the 1931 law. Said Alabama Congressman Miles Allgood during the February 28,1931, floor debate on the bill, That contractor has cheap colored labor and it is labor of that sort that is in competition with whit e labor This bill has merit it is very important that we enact this mea sure.

Despite its devastating impact on black firms and tradesmen, and its effect of increasing federal construction costs by $1.5 billion annually, the 60-year old Davis Bacon Act rem ains 1aw.The reason: Congress refuses to abolish it out of fear of offending organized labor. George Bush should launch a cam paign to convince Congress to repeal the Act. As part of this effort, he should instruct Labor Secretary Elizabeth Dole and other appropriate executive branch agencies to conduct a thorough examination of the Acts impact on mi norities. Bush should make repeal of the Davis Bacon Act the centerpiece of his civil rights strategy to eliminate the remaining vestiges of Americas Jim Crow laws 8) Require that Congress be Subject to Civil Rights Laws. Congress rou tinely exempts itself from the laws it passes, including the nations major civil rights statutes. Although the executive branch is subject to the provisions of the 1964 Civil Righ t s Act, Congress is not. Thus the 37,000 employees of the legislative branch are without the civil rights protection guaranteed to all other Americans.This has led some observers to describe Congress as the last plantation. Undeterred, however, Congress is attempting to exempt it self from new civil rights laws. The Kennedy/Hawkins bill, for example, fails to require that Congress comply with its provisions.

George Bush, in his May 17 Rose Garden speech, called. on Congress to apply to itself all existing and proposed civil rights 1aws.This is sound policy.

Bush should hold Congress to that standard, and refuse to sign any civil rights bill that fails to subject Congress to its provisions 943 43 Congressional Record House, February 28,1931, p. 6513 20 CONCL USION In his February testimony before the Senate Labor and Human Resources Committee, Harvards Glenn Loury summed up the current Civil rights chal lenge: Today the nation faces a challenge different in character though perhaps no less severe in degree re v olution. It is important, though, to be clear about just what that challenge is, and what it is not.The bottom stratum of the black community has compelling problems which can no longer be blamed solely on white racism, which will not yield to protest mar c hes or court orders, and which force us to confront disquieting aspects of lower class black urban society. The profound alienation of the ghetto poor from mainstream American life has continued to grow worse in the years since the triumphs of the civil r i ghts movement, even as the successes of that movement has provided the basis for an impressive expansion of economic and political power of the black middle class. Finding ways to effectively address the problems of the inner-city poor, of 41 races, is th e challenge which confronts us today I than that which occasioned the civil rights The abandonment of employment and educational objectivity and the re flexive use of quotas exacerbate racism and fail to address the serious prob lems faced by Americas trul y underclass. What is needed are efforts to con front remaining obstacles so that minorities can take advantage of the oppor tunities secured by the civil rights laws. The economic barriers separating mi norities from the American mainstream are the type o f barriers that affirma tive action originally was intended to overcome: practical obstacles, some the result of discrimination and some not, that prevented individuals from sew ing the opportunities promised by civil rights laws. By pursuing an affirmativ e action strategy of redressing problems of economic mobility and human capi tal development I the e unfinished business of the civil rights movement can be completed role in the civil rights debate, acting as opponents to civil rights or passive by stande r s while liberals dictated the terms of the debate. Many civil rights poli cies of the past quarter century have failed to aid the most disadvantaged indi viduals in our society. These policies also have perpetuated racial divisions Conservatives since the 1960s have consigned themselves to a marginal 44 Loury, op. cit 21 among Americans. This dismal status quo can change only if conservatives re claim the moral high ground and assume a positive leadership role in civil rights issues in the coming decade. T his leadership can be achieved by pursu ing a strategy of vigorous law enforcement and individual empowerment.

Prepared for The Heritage Foundation by Clint Bolick Director Landmark Legal Foundation Center for civil kights and Mark B. Liedl Director of Special Projects The Heritage Foundation A !i 22