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

The New Color Line: How Quotas and Privileges Destroy Democracy is a provocative but frustrating book. The heart of the book is a well-researched history of how civil rights litigation and legislation ultimately led to today's ubiquitous racial quotas and preferences. No boring academic tome, The New Color Line is well-written and concise. It is likely to be the leading conservative study of affirmative action for some time.

But even though the book is often insightful, it suffers from many of the flaws typical of conservative critiques of affirmative action. First, the authors fail to acknowledge at appropriate points America's history of oppression of racial minorities, particularly blacks. Second, the authors never discuss what would replace affirmative action. Third, the authors exhibit some confusion as to why they oppose affirmative action. Is it, as the title of the book implies, because affirmative action "destroys democracy"? Or is it, as the authors sometimes suggest, because affirmative action creates special privileges that destroy the liberal order? Or perhaps, as the authors argue in one chapter, civil rights laws that apply to private parties violate individual liberty, whether or not they are accompanied by racial preferences.

Paul Craig Roberts and Lawrence M. Stratton initially focus on the argument that affirmative action subverts democracy. According to the authors, the assault on democracy began with the 1944 publication of Swedish economist Gunnar Myrdal's treatise on the state of black America, An American Dilemma. Myrdal's book, a true masterpiece because of the prodigious research effort that produced it, put the neglected issue of the outrages suffered by black America in the forefront of the liberal agenda. But the book concluded on a pessimistic note: As a practical matter, segregation was too popular to be ended democratically.

Roberts and Stratton vigorously dispute this point, and contend that segregation was on its way out through democratic processes by the late 1940s. That may be true, but the authors fail to recognize that from Myrdal's 1944 perspective, America's recent history with regard to racial and ethnic minorities gave him no cause to be sanguine.

In addition to the day-to-day apartheid faced by blacks in the South, Japanese Americans were imprisoned in military internment camps; American Indians were, for lack of a better term, still being oppressed on their reservations; Chinese Americans were forbidden to marry whites in California, Oregon, Idaho, and other states; and the United States government, refusing to fill even the pitiful Eastern European quotas allowed under the discriminatory 1924 Immigration Act, was keeping its doors firmly closed to Jewish refugees from the Nazi genocide.

Roberts and Stratton do, however, present a persuasive case that An American Dilemma influenced the Supreme Court's decision to ban public school segregation in Brown v. Board of Education in 1954. The authors argue that Brown was a serious mistake for two major reasons: It retarded the democratic process, which would ultimately have resolved the segregation issue; and it was in clear conflict with the intentions of the framers of the 14th Amendment, who never would have dreamed that the Equal Protection Clause banned school segregation. Ultimately, according to the authors, Brown discredited both democracy and strict adherence to the Constitution among judges and legal scholars.

But the emphasis on Brown's antidemocratic tendencies begs the question of whether the South, especially the Deep South, was truly democratic before the Voting Rights Act was passed in 1965 and the black masses finally were able to exercise the franchise. In fact, Roberts and Stratton never consider this issue.

Moreover, the United States is not a democracy but a constitutional republic. The authors give short shrift to legitimate arguments - admittedly not made by the Supreme Court in Brown - that school segregation was a violation of the 14th Amendment's Equal Protection clause. The concept of equal protection, properly understood, dates back to the Jacksonian era and beyond. According to this tradition, "class legislation" favoring one group of citizens over another is prohibited.

School segregation as practiced by the Southern states was clearly class legislation favoring white children over black children. The Supreme Court could not rely on the anti-class legislation tradition in Brown, however, because during the Roosevelt era the Court had rejected it in favor of a policy of judicial restraint. On the other hand, a heavy dose of Myrdal - along with postwar revulsion at Nazi Germany's racial policies and the Cold War imperative of improving America's image abroad - persuaded the justices that state-sponsored segregation had to be ended immediately. The upshot was Brown, correct in its result but incoherent from a legal standpoint. The authors note that Brown quickly became a liberal icon, giving judges the authority and confidence to engage in judicial activism regarding racial issues. Nevertheless, the authors exaggerate the case's significance when they claim that Brown led to "rule by judges."

That dubious honor belongs to the relatively obscure case of Shelley v. Kraemer, decided by the Supreme Court in 1948. In Shelley, the Supreme Court held that court enforcement of racially discriminatory restrictive covenants violates the Equal Protection Clause. This ruling came despite the undisputed fact that any American citizen, white or black, had the equal right to make and enforce a racially restrictive contract. What the Court found objectionable was not discriminatory government action, but private discriminatory preferences. Shelley marked the beginning of the emergence of civil rights as an aggressively statist ideology. By the early 1960s, the primary goal of liberal judicial activists had shifted from Brown's emphasis on obliterating state-sponsored racism to Shelley's emphasis on conquering de facto segregation and private discrimination.

In 1965, influential United States Court of Appeals Judge Skelly Wright argued in favor of a judicially imposed merger of urban and suburban school districts, regardless of whether there was any evidence of intentional discrimination by school authorities. The purpose of this proposal was to overcome de facto public school segregation arising out of residential patterns in the private housing market. The scope of Wright's proposal is breathtaking. Not content with mere integration, Wright argued that each school in the merged districts must have a proportionate distribution of black and white students.

Wright's plan makes the judicial abuses that Roberts and Stratton cite limited intra-city busing, federal takeover of the Kansas City school system - seem quite timid by comparison. Perhaps the real story is not that Americans are ruled by judges, but that we barely escaped absolute judicial control. In 1974, four of the nine justices on the Supreme Court voted to require states to merge their urban and suburban school districts. Had Hubert Humphrey been elected in 1968, the Supreme Court would have had three extra liberals and would likely have implemented Wright's scheme.

While judges have exercised only limited control over American life, civil rights laws have intruded dramatically on civil society, beginning with the 1964 Civil Rights Act, which prohibits discrimination in the public and private sector. In discussing the Civil Rights Act, Roberts and Stratton briefly abjure democracy and turn libertarian. Although they never explicitly oppose the act, the authors condemn its restrictions on private behavior for violating freedom of conscience. They applaud the prescience of Milton Friedman, Robert Bork (who has since recanted), and Barry Goldwater, all of whom opposed applying civil rights laws to cover private discriminatory behavior, but supported restrictions on discriminatory state action.

Roberts and Stratton point out that "Goldwater was an integrationist, but he appreciated the distinction between public and private that the preoccupation with quotas had obscured." Ironically, the authors' own preoccupation with quotas obscures any further discussion of the public-private distinction in The New Color Line, and the libertarian tone of the chapter on the Civil Rights Act soon vanishes.

Instead, the authors return to their focus on democracy. Roberts and Stratton do a truly masterful job of proving that the Civil Rights Act was intended to prohibit all forms of discrimination, including reverse discrimination. They then explain how bureaucrats and judges nevertheless managed to institute a quota regime under the act. As is true throughout the book, the authors provide a wealth of interesting and often amusing detail to support their analysis. For example, the authors report that Alfred Blumrosen, the first compliance chief of the Equal Employment Opportunity Commission, steered the agency toward enforcing quotas. Why did Blumrosen have a free hand? Because the first chairman of the EEOC, Franklin D. Roosevelt Jr., spent most of his time yachting. Staffers sang "Franklin's Away" to the tune of "Anchor's Aweigh" during his many prolonged absences.

Contrary to the authors' views, however, it seems that bureaucratic and judicial support for affirmative action did not "destroy" democracy, but simply anticipated it by a decade or two. In a series of Supreme Court decisions in 1989, the Court returned to the original intent of the civil rights laws and reined in affirmative action. Two years later, however, George Bush signed the Civil Rights Act of 1991 into law, and racial preferences once again became the law of the land.

Roberts and Stratton clearly oppose the 1991 act, and other affirmative action schemes, but do not state what alternative they support. Perhaps the authors could not agree, which would explain why the book's position on the desirability of the 1964 act's prohibitions on private discrimination is muddled. Or perhaps they would both join most conservatives in supporting a strict, neutral civil rights law, under which whites would have the same right to sue for discrimination as minorities. Whites would be able to win lawsuits based on indirect and statistical evidence of discrimination, as protected minorities do currently.

Under such a regime, employers seeking to avoid lawsuits would begin to hire workers based purely on objective credentials. Not coincidentally, blacks and members of other relatively impoverished and less-educated groups have fewer formal credentials than whites. Hence, neutral civil rights laws steer employers away from giving applicants with inferior paper credentials a chance. Blacks, Hispanics, and American Indians are therefore probably better off without civil rights laws than with harsh, neutral laws that do not permit affirmative action.

It would be possible to mitigate this result by allowing people to win civil rights lawsuits only when there is direct evidence of blatant discrimination. Back in 1964, many supporters of the Civil Rights Act seemed to have this kind of regime in mind. Within a few years, however, blatant, open discrimination of the (once common) "No Dogs or Jews allowed" variety had disappeared almost entirely. Today, even if the civil rights laws were all repealed, this type of discrimination would be unlikely to reappear except in very isolated pockets.

Civil rights activists are therefore correct when they accuse conservatives who oppose affirmative action of essentially opposing civil rights laws. The only types of civil rights laws that apply to private conduct that conservatives can support would either actually harm minorities, or would be almost wholly ineffectual. The debate over affirmative action would be far more honest if both civil rights activists and conservatives would acknowledge that truly neutral civil rights laws are simply not a viable option.

The answer, however, is surely not state-imposed racial preferences. Roberts and Stratton, to their credit, recognize that government-mandated preferences are not simply a threat to white males, but to the liberal order as a whole. As the authors explain, the Western world has progressed over the centuries from a feudal order, in which a person's rights depended on his status, to a liberal one, where each individual is equal under the law. Racial preferences bring us back to a society based on status.

The authors are also correct in noting disturbing similarities between modern left-wing thinking on race and the ideology of perhaps the most illiberal regime in history, Nazi Germany. (But they undermine their point by drawing hysterical parallels between the rise of anti-semitism in 1930s Germany and what they call the "systematic delegitimization of the white male" in contemporary America.) The modern American left is obsessed with racial identity and origin. Left-wing academics promote the idea that one's ethnic origins determine both what a person thinks and how much value society should attach to those thoughts.

Even more troubling, like other totalitarians, left-wing racialists encourage reliance on emotions and feelings, leaving many affirmative action activists seemingly utterly impervious to reason. When I was a first-year student at Yale Law School, left-wing students organized a student "strike" for one day to promote "diversity." One student speaker expressed her outrage that a white classmate declined an invitation to attend a "Women of Color and the Law" meeting. The classmate stated that as a white woman she was not "of color," and would therefore not be welcome. Reasonable? Not to the outraged speaker. She proclaimed that the white student was being racist because she saw whites as being of neutral pigment, while everyone else was "of color."

No one in the large crowd seemed to notice that it was the minority students who had designated themselves as being "of color" in the first instance. The glassy-eyed crowd's response to the speaker's inane blather was to applaud wildly. I witnessed the same reaction to several equally moronic speeches throughout the day. I went home very, very frightened.

In the long run, the ultimate victims of racialist thinking are likely to be America's traditional scapegoats, blacks, who continue to be vulnerable to political demagoguery because of their high degree of social separation from dominant white America. Roberts and Stratton, however, myopically suggest that racialist thinking might lead to an outbreak of violence against white males.

In fact, white males have held, hold, and will continue to hold for the foreseeable future a dominant position in American society. Affirmative action itself, in fact, is a creature of elite white males: senators, congressmen, presidents, Supreme Court justices, cabinet officials, university presidents, corporate CEOs, and so on. Elite white males could also end it any time they wanted to.

The reasons that they have not done so, it seems to me, is first, that affirmative action allows elite white males to show their concern for minorities by imposing costs on other, less powerful white males. Thus, incumbent tenured professors do not resign their own positions to make room for affirmative action candidates, but instead limit the job opportunities of young scholars who happen to be white males.

Second, affirmative action is the easy way out, tokenism at its worst. While my classmates at Yale spent hours and hours of time and energy pressing for more minority representation on the faculty and in the student body, thousands of poor black New Haven youths were trapped in horrible social conditions, surrounded by crime, and failed by the public school system. Few of them graduated high school, much less got a chance at attending law school.

The protesters eventually persuaded the faculty to award tenure to an obscure black professor who had published next to nothing. Would it be churlish of me to suggest that the law school would have struck a far greater blow for equality if it had donated the present value of this professor's future salary (which I would conservatively estimate at $3 million) to tutoring programs for local New Haven youths who are interested in becoming attorneys?

Affirmative action. then, should be ended not only because, as Roberts and Stratton argue, it violates individual rights, conflicts with a healthy civil society, discriminates against white males, and creates opportunities for government mischief-making, but because it distracts people of goodwill from confronting the real racial problems facing the United States. Quotas and set-asides may create the illusion of a just, equal society, but do little to actually implement it.

David E. Bernstein ([e-mail]) is an assistant professor at the George Mason University School of Law.