The New Color Line: How Quotas and Privilege Destroy Democracy.

THIS book points out something that should be obvious but nonetheless requires constant restatement: that legally required preferences on the basis of race or sex are inconsistent with the principle of equality of persons before the law and therefore with the maintenance of a democratic society. It is not surprising that such preferences should find their origin to an important extent, as the authors show, in the work of an ardent anti-democrat, the Swedish lawyer-economist Gunnar Myrdal. Myrdal, a founder of the Swedish welfare state, favored government by a "party of intelligence" which, though it "despises the democratic principle," would for practical reasons work within a democratic framework. American constitutional law precisely achieves this ideal, allowing democratic policymaking to proceed, but subject to the approval of the Justices of the Supreme Court.

In 1937, Myrdal received a $300,000 grant from the Carnegie Foundation to study the "Negro Problem" in the United States --another example of the contribution made by the tax-free foundations to the undoing of American society. The result was the publication in 1944 of An American Dilemma, in which Myrdal denigrated America's "extreme democracy" as an impediment to overcoming what he saw as the country's pervasive racism. He thought that racial segregation could not be ended through ordinary political or social processes, and he hoped to have the Supreme Court declare it "flagrantly illegal." In fact, as the authors show, segregation was well on its way to being ended in the schools -- as it had been in baseball in 1947 and the Armed Services in 1948 -- when the Supreme Court attempted to outlaw it by judicial fiat in the 1954 Brown decision.

Justice Felix Frankfurter, a former Harvard law professor, considered Myrdal's book "indispensable" and manipulated the judicial process to implement the social engineering it proposed. When Brown was first argued in 1952, it appeared that the Court would not outlaw segregation, and so Frankfurter maneuvered to have the case re-argued and the decision postponed for two years. The intervening death of Chief Justice Fred Vinson and his replacement with Earl Warren was greeted by Frankfurter as "the best evidence I have seen of the existence of God." Frankfurter, the authors relate, "conspired with the solicitor general's office to shape the Justice Department's briefs and oral argument in a manner designed to sway his colleagues on the Court." He consulted with and revealed Court deliberations to his former law clerk Philip Elman, who was handling the case for the government: "In the judicial equivalent of insider trading, Frankfurter and Elman frequently discussed Brown by telephone and in person."

After using "confidential information from Frankfurter to shape the Truman Administration's Brown brief," Elman successfully urged a reluctant Eisenhower Administration also to file a brief urging the Supreme Court to declare segregation unconstitutional. Even the New York Times later found that Frankfurter and Elman's acts were "deeply disturbing" and had "crossed a clear ethical line." Elman explained, however, that Brown involved "a cause that transcended ordinary notions about propriety in litigation."

Yet school segregation ended not as a result of the Brown decision -- the Court's unprincipled "all deliberate speed" decision of a year later in effect granted permission for an indefinite period of noncompliance -- but as a result of the 1964 Civil Rights Act. The Act ratified and extended what Congress (and everyone else) understood to be the Brown principle, a prohibition of all racial discrimination by government. Brown thus came to be seen as a great moral victory, and decision-making by the Supreme Court on the basis of moral principle as greatly superior to decision-making by politicians subject to electoral constraints. This perception allowed the Court to move on to many other "moral" victories, such as the removal of restrictions on abortion and pornography, the imposition of a novel liberalized code of criminal procedure on the states, prohibition of all distinctions based on illegitimacy, and the abolition of prayer and Bible reading in public schools.

The new role of the courts as the nation's conscience has permitted a moral leader such as Judge Leonard Sand -- living on a "32-acre estate in the picturesque Pound Ridge region of northern Westchester County" in New York -- to condemn the people of Yonkers as racist for failing to build subsidized public housing in middle-class neighborhoods. It permitted Judge Russell Clark to order Kansas City, Missouri, "to build a luxurious $700-million school system to draw whites back into inner-city public schools." Today nearly every state has at least one hyperactivist federal judge serving as the guardian of its conscience in the name of the Constitution. In a word, as a result of Brown, we have achieved rule by Myrdal's "party of intelligence" -- principally the disaffected academic Left -- through the medium of federal judges.

No sooner was the Brown non-discrimination principle adopted and made effective by the 1964 Civil Rights Act than the courts, ever seeking new moral victories, proceeded to stand both Brown and the Act on their heads. In Swann v. Charlotte - Mecklenburg, the first busing case, Brown's and the Act's prohibition of racial discrimination in school assignment was converted into a requirement of racial discrimination in order to achieve "racial balance" in the schools. In Griggs v. Duke Power Co. and Steelworkers v. Weber, the Act's prohibition of racial discrimination in employment became an effective requirement of discrimination against whites. In Regents v. Bakke, the Act's prohibition of racial discrimination by colleges, universities, and other institutions that receive federal funds was found not to be applicable to whites.

Much of this, the authors point out, as if to make the story even more discouraging, was the work of so-called conservatives. For example, George Shultz and Laurence Silberman, as officials in the Nixon Administration, instituted racial quotas in employment with their Philadelphia Plan. Warren Burger, "Nixon's Chief Justice," wrote the opinions for the Court in both Swann and Griggs, surely two of the most destructive judicial decisions in our history. C. Boyden Gray, Legal Counsel to President Bush, worked to convince Republican congressmen that the 1991 Civil Rights Act was not the quota bill it so clearly is. "Conservatives" in public life are thus able to establish their good intentions and remain on good terms with the Left, which is often politically useful, while also showing their adherence to principle and sense by later admitting their "mistake," when unfortunately the damage has been permanently done.

One is tempted to hope that some of the authors' reports of "diversity" measures are in error or intended as jokes. Is it really credible, for example, that the U.S. Forest Service posted job notices for firefighter positions stating that "only unqualified applicants . . . only applicants who do not meet standards will be considered"? Or that a Federal Aviation Administration job announcement similarly stated that "applicants who meet the qualification requirements . . . cannot be considered for the position"? Or that the FAA, committed to filling "one out of every two vacancies with a diversity selection," instructed its managers that "the merit promotion process . . . need not be utilized if it will not promote your diversity goals"? These things, unfortunately, are probably no less true than, for example, that the University of Texas Law School has officially set scores for the automatic admission of black applicants that are lower than the scores set for the automatic rejection of whites. It is undeniably true that when Congress cut off student loans to colleges with excessive defaults, the statute expressly stated that "historically black colleges and universities are exempted."

The result of this and other such measures is to make clear, as the authors point out, that "minorities don't have to play by the same rules" as other people. The clear message of "affirmative action" and "diversity" programs is that blacks -- continuously victimized, as Myrdal taught, by white racism -- cannot justly be required to comply with the standards applicable to whites. It is a message designed to destroy that good will between blacks and whites without which the maintenance of an integrated, multiracial society is not possible.