But you say that we must have race-based affirmative action programs in order to counter them.  For many years, I agreed.  Some kind of remedial action certainly is necessary to correct the historical and current bias in our society that keeps minorities from even getting to the starting line, much less from having a fair chance to win the race.

Then I got around to reading the 14th Amendment to our Constitution, which says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This is a very important provision which eliminates the recognition of class or special status in the application of laws.  Race-based affirmative action programs discriminate on the basis of race, an inherent individual characteristic about which a person can do nothing, to create an unequal application of the law.  Perhaps it is for a noble goal, but how can we discriminate on the basis of race when doing so got us in this mess to begin with?  And isn't it hypocritical to do so?

Clearly, race-based affirmative action laws deprive some individuals of their liberties for the benefit of others purely on the basis of race.  The 14th Amendment correctly forbids that.

Race is not the problem.  People's attitudes are the problem.  I think that we should attack the problem head on.

Republican Presidents have, for many years, sought to put on the Supreme Court judges whose views are on the far right of their party.  Those judges have been able to slow our march away from discrimination because our laws have had lots of holes in them.  But they have always voted to bar discrimination on the basis of race, and that is always the correct decision because it is the end that we wish to reach.

Still, they have ruled, for instance, that a person who has been discriminated against because of their race must show that the discrimination was intended and not merely incidental in order to receive relief.  And the fault for that lies not with the Court but with Congress.  Congress must write better laws to prevent racial discrimination.

To qualify for a job as a firefighter, a person must possess and be able to demonstrate certain skills.  The recent case that came before the court said that the test of those skills had an unintended racial bias.  The fact of that racial bias was proven in the lower court, which found ample precedent to find for the minority applicants.  The Supreme Court, on the other hand, was able to reverse years of practice and change our national policy because Congress had not given good enough instructions about what to do.  The Court's whim this year is that a victim must show intent, not merely a result.

It is not necessary to discriminate on the basis of race to correct this problem.  It is necessary only to make it easier for victims of racial discrimination to have their claims heard and for courts to act against such discrimination regardless of the cause.  No quotas are necessary, although statistical evidence must be admissible to show a pattern of discrimination.

For instance, if 10% of a towns population is purple, but only 2% of its garbage collectors are purple, we cannot infer racism from that alone.  But if 10% of the applicants for the job have, over time, been purple but only 2% get hired, then the court can treat that as probable cause for a trial.  If it's found that purple people generally live in neighborhoods which provide inadequate education to children which prevent them from qualifiying for the job, the remedial measures can be instituted.  Or if the person who ultimately makes the decision to hire an applicant is frequently heard to disparage purple people down at the local tavern, then that should be evidence of an inherent bias, and the court can order appropriate changes.

And if there's a question on the qualifying test that says, "Are you purple?", and a "Yes" answer is treated as a disqualifier, then the test must be thrown out.  I'm willing to bet that in all cases where tests have been shown to have a racial bias, the tests were "testing" conditions that had nothing to do with performance on the job.  Irrelevancies can be weeded out of the qualification process without giving preference to one race over another.

Fixing the problems that permit racial discrimination is the only way we can successfully beat it.  But we cannot defeat racism by becoming racists ourselves.  The race-based affirmative action approach of instituting racial discrimination in order to address the problem of racial discrimination only exacerbates the problem.

by EveningStarNM on 07/06/2009 02:08:30 AM EST

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