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Is America Going Color Blind?

ANNOUNCER: Think Tank is made possible by AMGEN,

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for tomorrow.





Additional funding is provided by the John M. Olin

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Bradley Foundation.





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MR. WATTENBERG: Hello, Iím Ben Wattenberg. Can
America have a color-blind society? Should it? Itís an
argument as old as the Republic itself. On June 14th,
President Clinton will deliver what is being billed as a
major address on that topic. It is a fitting moment to
revisit this most persistent theme. Joining us are Randall
Kennedy, a professor at Harvard University Law School, and
author of a major new book Race, Crime and the Law. His
book is a powerful argument for stripping race out of the
criminal justice system. And William Galston, professor of
public policy at the University of Maryland, and a former
domestic policy advisor to President Clinton. The question
before this house, is America going color-blind, this week
on Think Tank.

MR. WATTENBERG: In November of 1996, Californians
passed Proposition 209. The California Civil Rights
Initiative, CCRI. Borrowing the language of the 1964 Voting
Rights Act, CCRI required that government agencies be
neutral on race, whether in hiring policies or admissions to
state schools. President Clinton opposed Prop 209 as a
ballot initiative. After Californians passed CCRI by 54 to
46 percent, Clinton instructed his Justice Department to
work with those seeking to have the courts declare the
measure unconstitutional.

Randall Kennedy, a major advocate of color-blindedness,
recently wrote a controversial essay in which he argued that
blacks should rethink their allegiance to group politics.
The article has received a great deal of attention. We pick
up our conversation on that topic.

Randy Kennedy, you wrote a cover story in the Atlantic
recently called My Race Problem And Ours. I wonder if you
could tell us what that was about?


MR. KENNEDY: My essay in the Atlantic is a critique of
the idea of racial pride and racial kinship. Itís a
critique of the idea that, letís say -- letís take myself, I
asked the question at the beginning of the article, should I
have more affection for black people than for other people?
And my answer is -- on a racial basis, should I, as a matter
of a feeling of racial kinship feel closer to black people
than other people, and I answer no. You inherit your race,
itís accidental. You happen to have white skin or you
happen to have black skin. I think people should have pride
in their individual accomplishments, not in whatever status
they happen to occupy?


MR. WATTENBERG: There was -- I havenít seen it
recently, but a few years ago there was that T-shirt that
said 'Itís a black thing, you wouldnít understand.' What
did you think about that?

MR. KENNEDY: I thought it was -- I didnít like the T-
shirt. I thought that it was a -- I didnít like the T-
shirt. And I think it was a very counterproductive T-shirt.
Just suppose, for instance, that white people looking at
that said, yeah, thatís right, itís a black thing. I donít
understand. And so, I guess I shouldnít make any effort to
try to understand my fellow American. Iím only white, I
canít understand what this -- I canít empathize with this
person. Iím against that sort of thing. And thatís what my
article really articulates.

MR. WATTENBERG: What are you thinking?

MR. GALSTON: Well, first of all, my hat is off to you.
It was one of the bravest and most honest pieces that Iíve
read in a very long time. And I think that the national
discussion that itís sure to spark will do us some good.
Having said that, I would want to distinguish between the
civil dimension of kinship and affiliation and the civic
dimension. And I agree with you absolutely that this sense
of being more like one group than other groups should not in
any significant way affect our sense of common citizenship,
the way we legislate, the way we conduct our public
business. Having said that, I think that part of the
reality of life in this country and in every country, is
that there are subgroups which are divided to some extent by
differences of experience, differences of situation. Those
subgroups have something in common.

Iím Jewish, and I donít think that being proud simply
because of that fact is warranted, but if youíre asking me
is there something that I have in common, a kinship to use
your term, with other Jews that I donít have to the same
extent with my other fellow citizens, I think the answer to
that question is yes. And the question in our country is to
how to combine those two parallel and I believe consistent
truths.

MR. KENNEDY: Let me respond to that. One, you mention
reality. Thatís right, your description of reality I agree
with. But reality is changeable, and we need to change the
realities on the ground today.

Two, the distinction between the civil and the civic.
The civil will lead into the civic. For instance, letís
imagine, thereís no law that prohibits people from joining,
letís say, all white private clubs. Our law allows people
to join, get together in truly private all white clubs, or
for that matter truly private all black clubs, or what-have-
you. Now, imagine if somebody belongs to an all white
private club, thatís private, itís lawful. And this person
then wants to become -- and this person is a candidate for a
judgeship. Iím going to say, hold it. Itís lawful --

MR. WATTENBERG: Iím going to tell you what his first
line is going be, why I was leading the charge in that club
to get it to open up. Thatís a 14(c)(3) in the politicianís
handbook. But go ahead.

MR. KENNEDY: But the point is, the point is, I am, I
think, going to legitimately be apprehensive about the
capacity of this person to all of a sudden be sort of a
different person with black robes on than this person in
their private club. Itís lawful. Itís part of reality, as
it is currently existing in our society. We ought to change
the reality.

MR. WATTENBERG: What did you --

MR. KENNEDY: I want to change the conception of who we
are, so that when I -- so that when somebody says to me, you
know, when a black person says, my people, I want the black
person to mean, my American people. I want the white person
to mean, black people when he or she says, my people. I
donít want there to be racial boundaries around our --

MR. WATTENBERG: What did you think of the Million Man
March?

MR. KENNEDY: I was very critical of the Million Man
March?

MR. WATTENBERG: Because?

MR. KENNEDY: Because it was an instance, an episode,
of racial boundary making, racial mobilized politics. I
think thatís poison for our society.

MR. WATTENBERG: What about Bill Galstonís point,
though, about affinity for shared experience? I mean, Bill
is Jewish, Iím Jewish, we have a certain shared experience
that doesnít mean that weíre keeping you out of the
conversation, but there are things we can probably talk to
that we might even have a hidden T-shirt that says, itís a
Jewish thing, you donít understand. What is -- I mean,
donít black people in America given -- certainly, in this
country with this history, the tragic history often, have a
shared kinship to relate to? So that without it being
exclusive and saying, no whites allowed, you know, youíll
never understand, get out of my face, I mean but arenít
there -- isnít the natural evolution of human relationships
going to put black people in a march or in a club or in a
fraternity, or whatever?

MR. KENNEDY: If people want to -- I want people to
freely associate and thereís nothing wrong with black people
really associating, thatís fine. My criticism is the -- my
point is that there should be no expectation and certainly
no pressure pushing people to feel that it is right for a
personís skin color to be the signal that tells you that you
should feel more affection for them. Thatís -- itís this
racial signalling, this immediate racial signalling that I
want to impede.

MR. WATTENBERG: New topic, we recently had this
perhaps seminal vote in California, Proposition 209, that as
I read it, at least, did nothing more than restate the 1964
Civil Rights Act, and a part of the 14th Amendment, which
said, thou shalt not discriminate. Were you in favor or
against?

MR. KENNEDY: Probably against.

MR. WATTENBERG: Stop. Were you in favor or against?

MR. GALSTON: That proposition as drawn?

MR. WATTENBERG: Yes.

MR. GALSTON: By itself?

MR. WATTENBERG: Yes.

MR. GALSTON: I was against it as a free-standing
proposition.

MR. WATTENBERG: I think we are all in agreement that a
color-blind society is a good thing. Here was this
Proposition 209 which, at least as I read it, said we should
have a color-blind society. And you two guys are against
it. Why?

MR. KENNEDY: Why donít you go first.

MR. WATTENBERG: Whatís wrong with it?

MR. GALSTON: Well, a society is a complex system, and
changing one part of it without changing other parts of it
at the same time can create even more serious imbalances
than the ones that you set out to rectify. In the case of
Proposition 209, which I think is based on an
incontrovertible principle of justice, it is clear to me,
and I have studied the California educational system in
great deal, that its immediate and inevitable consequences
will be to dramatically reduce, and I mean by three-
quarters, the number of African-Americans entering the elite
institutions of higher education in the State of California.
Thatís the fact.

MR. WATTENBERG: Yeah. But let us underscore elite,
because they would go down from UC-Berkeley to UCSB or
whatever. Weíre not talking about people not being able to
go to college. And I didnít mean to say anything wrong
about UCSB, but go ahead.

MR. GALSTON: My objection -- my objection is to
annunciating the principle as though it were a fact, and
then saying, let the chips fall where they may. Let me say
exactly what I mean by that. The California system of
public education has gone down here woefully in the past 20
years. Not only is the average quality much lower than it
was 20 years ago, but the disparity between the remaining
good schools and the larger number of bad schools is greater
than it was 20 years ago. I donít know anybody who can take
a look at the public education system in the State of
California and say that there is equal educational
opportunity in the State of California.

The problem with simply altering the affirmative action
regime as a free-standing act is that it does nothing to
address the question of background inequalities generating
the inevitable outcome, that is the diminution by three-
quarters of the number of African-Americans entering the
elite institutions of higher education.

MR. WATTENBERG: All right.

MR. GALSTON: If Governor Wilson had said, I have a
comprehensive plan that Iím serious about to equalize
educational opportunity in my state, and as we equalize
educational opportunity as demonstrated by the performance
of the schools, we will phase out affirmative action. I
would have cheered. But he didnít do that.

MR. WATTENBERG: May I speak honestly? I am
unimpressed with that argument.

MR. GALSTON: Okay.

MR. WATTENBERG: Because we all -- you know, that is
the standard rebuttal. Oh, yeah, right, weíd really be for
it if the following 11 things all fell -- thatís not the way
the system works. Pete Wilson could get up there and say,
Iím going to reform everything, and this is just a part of
it. And then heís got a legislation, and heís got this, and
heís got that, and there are different principles of equity
and law in each one of these things. And what you end up
saying is, I think itís fine to controvert the -- to
contravene the Civil Rights Act of 1964. What is your
excuse for being color-blind and anti-209?

MR. KENNEDY: The first thing I want to say is that Iím
very ambivalent.

MR. WATTENBERG: I am, too. Iím putting on a little
bit of this, but go ahead.

MR. KENNEDY: Iím very ambivalent because my strong preference, my very strong preference is for people to be
treated regardless of race. So, affirmative action seems
to -- poses a problem for me. And Iím just going to say
that.

MR. WATTENBERG: Yeah. Letís say, letís make a
distinction because I think weíre all making it sort of
automatically, that everybody here is for affirmative action
of the outreach type. And, you know, letís get everybody
in, and advertise the positions. We are talking about when
affirmative action goes over some invisible line where it
starts to look like preferences or quotas. And you can
argue about where that line is. Is that right, thatís what
weíre talking about? When you say affirmative action, is
that right?

MR. KENNEDY: That is, but I want to add one thing,
because often people -- and Iím going to turn it on you.
Often people who are very critical of affirmative action
say, well, of course Iím in favor of outreach. And, of
course, outreach is still taking race into account. Itís a
mini-type of affirmative action.

MR. WATTENBERG: Right.

MR. KENNEDY: But to answer your question directly, I
guess Iím ultimately, though, ambivalent. Iím ultimately --
I was ultimately against 209 because I thought that it seems
to have removed any amount of flex in the system in
California. And I would have preferred to have an
arrangement under which there would be a little bit more
flexibility taking into account --

MR. WATTENBERG: They still would have and could have
and do take account of class, which would end up putting
disproportionate numbers of blacks from the lower
socioeconomic rungs into better schools. So, itís not as if
thereís no flexibility.

MR. KENNEDY: No, I understand that. Iím talking
specifically about race, because oftentimes people make it
seem -- I mean, class and race are different.

MR. WATTENBERG: Of course they are.

MR. KENNEDY: And the question would be, is there some
social utility in providing a boost to the black middle
class kid over maybe a kid, white kid, whose parents might
earn less money than the black middle class kid. And, under
the circumstances that obtain in our society now, I think
thereís an argument to be made, depending again on a variety
of circumstances, that, yes, thereís a reason to give the
boost to the black middle class kid.

MR. WATTENBERG: But the way you phrase that, it is
clear to me that you easily understand why the parents of
that white middle class kid would go bananas.

MR. KENNEDY: Oh, I understand that.

MR. WATTENBERG: And with some merit.

MR. KENNEDY: Yes. And, in fact, what makes this all
the more ironic, me saying this, is the same sort of
arguments that could be made in favor of the police taking
race into account in putting that question mark over blacks
could be made for affirmative action. I mean, thereís a
certain way in which these two arguments are completely
analogous. Yet, in one Iím arguing against taking race into
account, and on the other Iím seeming to argue a somewhat
different story. Thereís a real tension there.

MR. GALSTON: I may not be right in my position, but I
think my position is at least arguably consistent, you know,
because I think I am willing to take race into account to
some extent in both those things, and the reason for -- you
used the phrase, Randy, and I think itís a very revealing
and important one, social utility. There is a deep
philosophical discussion, as you know, about the
relationship between the promotion of overall social utility
on the one hand, and looking at justice in individual cases
on the other hand. And it may be that when you look at the
question of doing justice to individuals, youíll be led to
one set of policy conclusions, and if you look at the
overall issue of promoting the long-term well-being of the
society as a whole, you may be led in a somewhat different
direction. Quite frankly, I find myself torn between those
two sets of considerations.

MR. WATTENBERG: Let me interrupt here. Okay, neither
of you would have voted for 209. You would have thought
about it, but neither of you would have voted for 209, 209
passed with a moderate margin, 5248/5347, something like
that, after a very well publicized campaign. At which
point, your boss, your then boss or you may have left by
then, but your former boss, President Clinton, allowed the
Justice Department to adjoin a suit which said that
Proposition 209 was unconstitutional.

Now, it is one thing to say, I would support 209 as a
political matter. Youíre against 209 as a political matter.
But is there any rationality whatsoever to say that the 14th
Amendment and the Civil Rights Act of 1964 -- I mean,
arguably the two great acts of jurisprudence in the last
couple of centuries -- that those acts are unconstitutional?
Is there an argument to be made for that?

MR. GALSTON: Iím going to let the Harvard law
professor give the long answer.

MR. WATTENBERG: Well, thatís what I want.

MR. GALSTON: But let me give the short one. I think
we have to get back into the habit in this country of
distinguishing between policy matters and constitutional
matters. And I find it implausible on its face that there
is a constitutional bar to doing what the electorate of the
State of California chose. And we can have, as you say, a
debate about the policy, but I do not think that this can be
resolved constitutionally. It shouldnít be.

MR. KENNEDY: Well, weíre in agreement. No, I did not
think that there was any good argument for saying that
Proposition 209 was unconstitutional.

Can I just make a point, though? And it sort of echoes
a point that you made earlier. I tell you, with respect to
209 and affirmative action in general, I might have a
different view, I might be willing to say, Iím against
affirmative action, if authorities, if the general
population could tell me, we are going to across the board,
and very vigorously enforce a regime of equal treatment
before the law. That is to say, if I could get equal
treatment before the law in the criminal justice area and
all the other areas of American society, if I could be
assured of a vigorous enforcement of that norm, I would give
up my claim.

MR. WATTENBERG: Is it possible that the thing that is
hurting racial amity most in this country is that weíre
talking too much about it? Would it be good to go into a
decade of saying, hey, listen, thereís plenty of opportunity
around. It may not be perfect, as you pointed out, but
weíve made a lot of progress. Let everybody tend to their
business, because this constant drumbeat on it is -- not you
nor you, but people saying, this is racism, that is racism,
and the converse is, you know, all they want to do is talk
about race. Is that counterproductive now?

MR. KENNEDY: Stupid talk it counterproductive.
Intelligent talk is needed and is useful.

MR. GALSTON: First of all, there is some good news,
that racial attitudes, mutual acceptance, I think, is
growing rather than shrinking.

MR. WATTENBERG: Yes, I do, too.

MR. GALSTON: The notion that weíre on the verge of a
race war is, I think, a journalistic fantasy. Not your
journalistic fantasy but --

MR. WATTENBERG: No, I think this -- you know, I look
at these intermarriage rates. I mean, thatís the future of
this country. We are really creating a new folk out there.
Thatís another program which weíve done several times. Go
ahead.

MR. GALSTON: Having said that, I think there are some
areas, and I would put the crisis of legitimacy of the
criminal justice system at the top of that list, where
remaining silent in the face of the attitudes that we can
see are out there is very, very risky. Iíll be honest. I
was stunned and shocked by the divisions that were produced
by the OJ Trial. If you had asked me before that trial
started, is it going to work out that way? Would it work
out that way if the verdict went that way, I would have said
something between no and hell no. And that tells me that I
failed to grasp something very fundamental about a
contemporary reality of American society. And so I think we
need to talk about that.

MR. WATTENBERG: Okay. Letís just end it here. Thank
you very much, Professor Randall Kennedy. Good luck on your
big new book Race, Crime and the Law.

MR. KENNEDY: Thank you.

MR. WATTENBERG: Bill Galston, sometime unindicted
coconspirator in various political causes, I thank you for
joining us. Good luck on the not yet completed book that is
lurking.

And thank you all for joining us. For Think Tank, Iím
Ben Wattenberg.







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