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Is Privatization the Answer?

race color blind

ANNOUNCER: Brought to you in part by ADM,feeding the world is the biggest challenge of the new century, whichis why ADM promotes satellite technology to help the American farmerbe even more productive. ADM, supermarket to the world.


Additional funding is provided by the JohnM. Olin Foundation and the Lynde and Harry Bradley Foundation, theUnited States Japan Foundation and the Donner CanadianFoundation.


DR. KING (From video): My four littlechildren will one day live in a nation where they will not be judgedby the color of their skin, but by the content of their character. Ihave a dream today.


MR. WATTENBERG: Hello, I'm BenWattenberg. Can America have a color-blind society? Should it? It's an argument as old as the Republic itself. On June 14th,President Clinton will deliver what is being billed as a majoraddress on that topic. It is a fitting moment to revisit this mostpersistent theme. Joining us are Randall Kennedy, a professor atHarvard University Law School, and author of a major new book Race,Crime and the Law. His book is a powerful argument for strippingrace out of the criminal justice system. And William Galston,professor of public policy at the University of Maryland, and aformer domestic policy advisor to President Clinton. The questionbefore this house, is America going color-blind, this week on ThinkTank.


(Musical break.)


MR. WATTENBERG: In November of 1996,Californians passed Proposition 209. The California Civil RightsInitiative, CCRI. Borrowing the language of the 1964 Voting RightsAct, CCRI required that government agencies be neutral on race,whether in hiring policies or admissions to state schools. PresidentClinton opposed Prop 209 as a ballot initiative. After Californianspassed CCRI by 54 to 46 percent, Clinton instructed his JusticeDepartment to work with those seeking to have the courts declarethe

measure unconstitutional.


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


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


MR. KENNEDY: My essay in the Atlantic isa critique of the idea of racial pride and racial kinship. It's acritique of the idea that, let's say -- let's take myself, I askedthe question at the beginning of the article, should I have moreaffection for black people than for other people? And my answer is-- on a racial basis, should I, as a matter of a feeling of racialkinship feel closer to black people than other people, and I answerno. You inherit your race, it's accidental. You happen to havewhite skin or you happen to have black skin. I think people shouldhave pride in their individual accomplishments, not in whateverstatus they happen to occupy?


MR. WATTENBERG: There was -- I haven'tseen it recently, but a few years ago there was that T-shirt thatsaid 'It's a black thing, you wouldn't understand.' What did youthink about that?


MR. KENNEDY: I thought it was -- I didn'tlike the T-shirt. I thought that it was a -- I didn't like theT-shirt. And I think it was a very counterproductive T-shirt. Justsuppose, for instance, that white people looking at that said, yeah,that's right, it's a black thing. I don't understand. And so, Iguess I shouldn't make any effort to try to understand my fellowAmerican. I'm only white, I can't understand what this -- I can'tempathize with this person. I'm against that sort of thing. Andthat's what my article really articulates.


MR. WATTENBERG: What do you think?


MR. GALSTON: Well, first of all, my hatis off to you. It was one of the bravest and most honest pieces thatI've read in a very long time. And I think that the nationaldiscussion that it's sure to spark will do us some good. Having saidthat, I would want to distinguish between the civil dimension ofkinship and affiliation and the civic dimension. And I agree withyou absolutely that this sense of being more like one group thanother groups should not in any significant way affect our sense ofcommon citizenship, the way we legislate, the way we conduct ourpublic business. Having said that, I think that part of the realityof life in this country and in every country, is that there aresubgroups which are divided to some extent by differences ofexperience, differences of situation. Those subgroups have somethingin common.


I'm Jewish, and I don't think that beingproud simply because of that fact is warranted, but if you're askingme is there something that I have in common, a kinship to use yourterm, with other Jews that I don't have to the same extent with myother fellow citizens, I think the answer to that question is yes. And the question in our country is to how to combine those twoparallel and I believe consistent truths.


MR. KENNEDY: Let me respond to that. One, you mention reality. That's right, your description of realityI agree with. But reality is changeable, and we need to change therealities on the ground today.


Two, the distinction between the civil andthe civic. The civil will lead into the civic. For instance, let'simagine, there's no law that prohibits people from joining, let'ssay, all white private clubs. Our law allows people to join, gettogether in truly private all white clubs, or for that matter trulyprivate all black clubs, or what-have-you. Now, imagine if somebodybelongs to an all white private club, that's private, it's lawful. And this person then wants to become -- and this person is acandidate for a judgeship. I'm going to say, hold it. It's lawful--


MR. WATTENBERG: I'm going to tell youwhat his first line is going be, why I was leading the charge in thatclub to get it to open up. That's a 14(c)(3) in the politician'shandbook. But go ahead.


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


MR. WATTENBERG: What did you --


MR. KENNEDY: I want to change theconception of who we are, so that when I -- so that when somebodysays to me, you know, when a black person says, my people, I want theblack person to mean, my American people. I want the white person tomean, black people when he or she says, my people. I don't wantthere to be racial boundaries around our --


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


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




MR. KENNEDY: Because it was an instance,an episode, of racial boundary making, racial mobilized politics. Ithink that's poison for our society.


MR. WATTENBERG: What about Bill Galston'spoint, though, about affinity for shared experience? I mean, Bill isJewish, I'm Jewish, we have a certain shared experience that doesn'tmean that we're keeping you out of the conversation, but there arethings we can probably talk to that we might even have a hiddenT-shirt that says, it's a Jewish thing, you don't understand. Whatis -- I mean, don't black people in America given -- certainly, inthis country with this history, the tragic history often, have ashared kinship to relate to? So that without it being exclusive andsaying, no whites allowed, you know, you'll never understand, get outof my face, I mean but aren't there -- isn't the natural evolution ofhuman relationships going to put black people in a march or in a clubor in a fraternity, or whatever?


MR. KENNEDY: If people want to -- I wantpeople to freely associate and there's nothing wrong with blackpeople freely associating, that's fine. My criticism is the -- mypoint is that there should be no expectation and certainly nopressure pushing people to feel that it is right for a person's skincolor to be the signal that tells you that you should feel moreaffection for them. That's -- it's this racial signaling, thisimmediate racial signaling that I want to impede.


MR. WATTENBERG: New topic, we recentlyhad this perhaps seminal vote in California, Proposition 209, that asI read it, at least, did nothing more than restate the 1964 CivilRights Act, and a part of the 14th Amendment, which said, thou shaltnot discriminate. Were you in favor or against?


MR. KENNEDY: Probably against.


MR. WATTENBERG: Stop. Were you in favoror against?


MR. GALSTON: That proposition asdrawn?




MR. GALSTON: By itself?




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


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


MR. KENNEDY: Why don't you gofirst.


MR. WATTENBERG: What's wrong withit?


MR. GALSTON: Well, a society is a complexsystem, and changing one part of it without changing other parts ofit at the same time can create even more serious imbalances than theones 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 educationalsystem in great deal, that its immediate and inevitable consequenceswill be to dramatically reduce, and I mean by three-quarters, thenumber of African-Americans entering the elite institutions of highereducation in the State of California. That's the fact.


MR. WATTENBERG: Yeah. But let usunderscore elite, because they would go down from UC-Berkeley to UCSBor whatever. We're not talking about people not being able to go tocollege. And I didn't mean to say anything wrong about UCSB, but goahead.


MR. GALSTON: My objection -- my objectionis to annunciating the principle as though it were a fact, and thensaying, let the chips fall where they may. Let me say exactly what Imean by that. The California system of public education has gonedown here woefully in the past 20 years. Not only is the averagequality much lower than it was 20 years ago, but the disparitybetween the remaining good schools and the larger number of badschools is greater than it was 20 years ago. I don't know anybodywho can take a look at the public education system in the State ofCalifornia and say that there is equal educational opportunity in theState of California.


The problem with simply altering theaffirmative action regime as a free-standing act is that it doesnothing to address the question of background inequalities generatingthe inevitable outcome, that is the diminution by three-quarters ofthe number of African-Americans entering the elite institutions ofhigher education.


MR. WATTENBERG: All right.


MR. GALSTON: If Governor Wilson had said,I have a comprehensive plan that I'm serious about to equalizeeducational opportunity in my state, and as we equalize educationalopportunity as demonstrated by the performance of the schools, wewill phase out affirmative action. I would have cheered. But hedidn't do that.


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




MR. WATTENBERG: Because we all -- youknow, that is the standard rebuttal. Oh, yeah, right, we'd really befor it if the following 11 things all fell -- that's not the way thesystem works. Pete Wilson could get up there and say, I'm going toreform everything, and this is just a part of it. And then he's gota legislation, and he's got this, and he's got that, and there aredifferent principles of equity and law in each one of these things. And what you end up saying is, I think it's fine to controvert the --to contravene the Civil Rights Act of 1964. What is your excuse forbeing color-blind and anti-209?


MR. KENNEDY: The first thing I want tosay is that I'm very ambivalent.


MR. WATTENBERG: I am, too. I'm puttingon a little bit of this, but go ahead.


MR. KENNEDY: I'm very ambivalent becausemy strong preference, my very strong preference is for people to betreated regardless of race. So, affirmative action seems to -- posesa problem for me. And I'm just going to say that.


MR. WATTENBERG: Yeah. Let's say, let'smake a distinction because I think we're all making it sort ofautomatically, that everybody here is for affirmative action of theoutreach type. And, you know, let's get everybody in, and advertisethe positions. We are talking about when affirmative action goesover some invisible line where it starts to look like preferences orquotas. And you can argue about where that line is. Is that right,that's what we're talking about? When you say affirmative act

ion, is that right?


MR. KENNEDY: That is, but I want to addone thing, because often people -- and I'm going to turn it on you. Often people who are very critical of affirmative action say, well,of course I'm in favor of outreach. And, of course, outreach isstill taking race into account. It's a mini-type of affirmativeaction.




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


MR. WATTENBERG: They still would have andcould have and do take account of class, which would end up puttingdisproportionate numbers of blacks from the lower socioeconomic rungsinto better schools. So, it's not as if there's noflexibility.


MR. KENNEDY: No, I understand that. I'mtalking specifically about race, because oftentimes people make itseem -- I mean, class and race are different.


MR. WATTENBERG: Of course theyare.


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


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


MR. KENNEDY: Oh, I understandthat.


MR. WATTENBERG: And with somemerit.


MR. KENNEDY: Yes. And, in fact, whatmakes this all the more ironic, me saying this, is the same sort ofarguments that could be made in favor of the police taking race intoaccount in putting that question mark over blacks could be made foraffirmative action. I mean, there's a certain way in which these twoarguments are completely analogous. Yet, in one I'm arguing againsttaking race into account, and on the other I'm seeming to argue asomewhat different story. There's a real tension there.


MR. GALSTON: I may not be right in myposition, but I think my position is at least arguably consistent,you know, because I think I am willing to take race into account tosome extent in both those things, and the reason for -- you used thephrase, Randy, and I think it's a very revealing and important one,social utility. There is a deep philosophical discussion, as youknow, about the relationship between the promotion of overall socialutility on the one hand, and looking at justice in individual caseson the other hand. And it may be that when you look at the questionof doing justice to individuals, you'll be led to one set of policyconclusions, and if you look at the overall issue of promoting thelong-term well-being of the society as a whole, you may be led in asomewhat different direction. Quite frankly, I find myself tornbetween those two sets of considerations.


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


Now, it is one thing to say, I wouldsupport 209 as a political matter. You're against 209 as a politicalmatter. But is there any rationality whatsoever to say that the 14thAmendment and the Civil Rights Act of 1964 -- I mean, arguably thetwo great acts of jurisprudence in the last couple of centuries --that those acts are unconstitutional? Is there an argument to bemade for that?


MR. GALSTON: I'm going to let the Harvardlaw professor give the long answer.


MR. WATTENBERG: Well, that's what Iwant.


MR. GALSTON: But let me give the shortone. I think we have to get back into the habit in this country ofdistinguishing between policy matters and constitutional matters. And I find it implausible on its face that there is a constitutionalbar 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 notthink that this can be resolved constitutionally. It shouldn'tbe.


MR. KENNEDY: Well, we're in agreement. No, I did not think that there was any good argument for saying thatProposition 209 was unconstitutional.


Can I just make a point, though? And itsort of echoes a point that you made earlier. I tell you, withrespect to 209 and affirmative action in general, I might have adifferent view, I might be willing to say, I'm against affirmativeaction, if authorities, if the general population could tell me, weare going to across the board, and very vigorously enforce a regimeof equal treatment before the law. That is to say, if I could getequal treatment before the law in the criminal justice area and allthe other areas of American society, if I could be assured of avigorous enforcement of that norm, I would give up my claim.


MR. WATTENBERG: Is it possible that thething that is hurting racial amity most in this country is that we'retalking too much about it? Would it be good to go into a decade ofsaying, hey, listen, there's plenty of opportunity around. It maynot be perfect, as you pointed out, but we've made a lot of progress. Let everybody tend to their business, because this constant drumbeaton it is -- not you nor you, but people saying, this is racism, thatis racism, and the converse is, you know, all they want to do is talkabout race. Is that counterproductive now?


MR. KENNEDY: Stupid talk iscounterproductive. Intelligent talk is needed and is useful.


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


MR. WATTENBERG: Yes, I do, too.


MR. GALSTON: The notion that we're on theverge of a race war is, I think, a journalistic fantasy. Not yourjournalistic fantasy but --


MR. WATTENBERG: No, I think this -- youknow, I look at these intermarriage rates. I mean, that's the futureof this country. We are really creating a new folk out there. That's another program which we've done several times. Goahead.


MR. GALSTON: Having said that, I thinkthere are some areas, and I would put the crisis of legitimacy of thecriminal justice system at the top of that list, where remainingsilent in the face of the attitudes that we can see are out there isvery, very risky. I'll be honest. I was stunned and shocked by thedivisions that were produced by the OJ Trial. If you had asked mebefore that trial started, is it going to work out that way? Wouldit work out that way if the verdict went that way, I would have saidsomething between no and hell no. And that tells me that I failed tograsp something very fundamental about a contemporary reality ofAmerican society. And so I think we need to talk about that.


MR. WATTENBERG: Okay. Let's just end ithere. Thank you very much, Professor Randall Kennedy. Good luck onyour big new book Race, Crime and the Law.


MR. KENNEDY: Thank you.


MR. WATTENBERG: Bill Galston, sometimeunindicted coconspirator in various political causes, I thank you forjoining us. Good luck on the not yet completed book that islurking.


And thank you all for joining us. ForThink Tank, I'm Ben Wattenberg.


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(Video break.)


ANNOUNCER: This has been a production ofBJW, Incorporated, in association with New River Media, which aresolely responsible for its content.


Brought to you in part by ADM, feeding theworld is the biggest challenge of the new century, which is why ADMpromotes satellite technology to help the American farmer be evenmore productive. ADM, supermarket to the world.


Additional funding is provided by the JohnM. Olin Foundation and the Lynde and Harry Bradley Foundation, theUnited States Japan Foundation and the Donner CanadianFoundation.


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