Thursday, August 13, 2009

The Race Is Not to the Swift

I have a lot of respect for the philosopher Antony Flew when he deals with religion. Not only God and Philosophy (1966) but The Presumption of Atheism (1976) and his contributions to New Essays in Philosophical Theology (co-edited with Alasdair MacIntyre, 1955) have helped me immensely in sorting out my own thoughts about religion.

When he deals with contemporary social issues, though, he doesn't do so well. I have never gotten past the opening pages of The Politics of Procrustes (1981), and I suppose I'd better try harder. I've been thinking again recently about race and racism, thanks partly to a small kerfuffle in a friend's comments on Facebook, incited further by the fuss over the arrest of Henry Louis Gates Jr. and the online controversies it inspired. Then I happened on this 1994 article (PDF format) by Flew, "How NOT to Eliminate Discrimination":
Judged by the stated intentions of those who guided its passage through the Congress the introduction of the 1964 Act was a spectacular and immediate success. The barriers excluding blacks from supposedly public accommodations tumbled overnight, while all forms of open and systematic anti-black discrimination in employment seem to have been effectively abolished soon after [118].
This seems to me a remarkably naive position for a sophisticated philosopher to take. Flew evidently believes that simply passing a law against something thereby eradicates it "overnight," knocking down barriers that have been deeply entrenched in the society for a century. This is implausible on its face; Flew would not suppose, I hope, that passing laws against theft immediately eliminates either theft itself or greed and need, the motives behind the crime. (I do believe Flew thinks that the "barriers excluding blacks" were purely and solely legal. They were extensively extra-legal too; Jim Crow laws were just the tip of the iceberg.) As far as discrimination is concerned, compared to theft or assault it is very easy to get around the spirit of the Civil Rights Act simply by observing its letter, by not specifying race in employment advertisements or telling applicants that they were rejected because of their skin color. This has been very effective; it's virtually impossible to prove discrimination if it's not overt and explicit. As Fred L. Pincus wrote in Reverse Discrimination: Dismantling the Myths (Lynne Rienner, 2003, page 140):
These same racial differences in the incidence of discrimination can also be found in a variety of "testing" studies of employment and housing. A black/white or Hispanic/white matched pair applies for the same job or attempts to rent the same apartment. Since the pair has comparable (fictitious) backgrounds, similar speaking styles, and wears similar clothing, any differential treatment can be attributed to race. All of these studies find substantial discrimination against people of color in favor of the white applicants ...
Here Pincus cites Marc Bendick Jr., Charles W. Jackson, and Victor A. Reinoso, "Measuring Employment Discrimination Through Controlled Experiment", Review of Black Political Economy 28 (1) (summer): 24-48. That racial discrimination, usually tacit, is still a potent factor in American society has been shown by many measures, and Pincus's book is a good, short introduction to the problem.

Flew continues:
But this success did not satisfy either the unofficial civil rights movement or the bureaucracy set up to supervise enforcement. The movement extended its ambitions beyond the elimination of merely negative discrimination against blacks, while the activities of the Equal Employment Opportunities Commission (EEOC) have gone far to confirm the universal validity of Hastie's Law: "For all societies the amount of perceived racism varies directly with the number of those in that society generously paid and prominently positioned to discover racism." Hastie's Law thus constitutes a particular application of the wider sociological truth that, whenever a substantial bureaucracy owes its existence to a perceived problem, that problem rarely if ever goes away. Never ask the barber whether you need a haircut [118-119].
Flew evidently bases his claims on a book he cites in the article's opening paragraphs, Richard Epstein's Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard, 1992). Epstein, Flew says, had previously "thought that the [Civil Rights Act of 1964] was long overdue, that the patterns and practices of discrimination that existed in the South and around the United States were apt targets of legislative correction," but recanted, and decided that "the entire apparatus of the anti-discrimination laws in Title VII should be repealed insofar as it applies to private employers -- at least those who operate in ordinary competitive markets without legal protection against the entry of new rivals" (Epstein, 9).

Here, however, Flew appears to take an entirely different tack. Like Epstein, he opposes anti-discrimination laws on principle, on the ground that they interfere with the freedom of "private employers" and, presumably, landlords and educators, "in ordinary competitive markets". This is just a bit odd, given Flew's belief that the 1964 Act was spectacularly and immediately successful in eradicating racial discrimination. You would almost think that he objected not to the 1964 Act but only to its later use "beyond the elimination of merely negative discrimination against blacks", meaning affirmative action and "'racial quotas'" (124). Flew apparently believes that racial discrimination will fade away of itself as private employers discover that non-discriminatory competitors are snapping up the qualified blacks, to the prejudiced employers' disadvantage. "So wherever, absent Jim Crow laws or other forcible racist interventions, firms are operating 'in ordinary competitive markets without legal protection against the entry of new rivals' they will have a strong self-interest in eschewing occupationally irrelevant grounds of discrimination not only in their hiring and firing but also in their buying and selling and in all other business dealings" (120).

I think one key to the apparent contradiction can be found in Flew's jaunty attempts at humor (or perhaps attempts at jaunty humor): the "unofficial civil rights movement" (he'd prefer an official one, run by the state?), racism as a "perceived problem" rather than a real one, "supposedly public accommodations," and the digs at "bureaucracy" and the perhaps apocryphal "Hastie's Law" (I can't find any other reference to it with Google). Flew apparently believes that only official discrimination enshrined in law is a problem, perhaps because it interferes with the right of white employers in Mississippi to hire blacks if they wish, which he might even believe they wished to do before 1964 but were prevented from doing only by Jim Crow laws. And he thinks racial discrimination is a fiction perpetuated solely by blacks in civil rights organizations and government bureaucrats paid to find racists under every bed. It doesn't occur to him that ordinary black Americans might also be "prominently positioned to discover racism", simply by virtue of being its targets.

I'd love to ask Flew if he feels about university professors in publicly funded universities as he does about other government bureaucrats. Do they seek job security by finding perceived problems to publish about? I also wonder if he feels the same way about American whites who complain that they are being discriminated against because of their race, that white men especially can't get hired any more because all the jobs are going to blacks.

As part of his research Fred Pincus interviewed a number of whites who believed that American affirmative action programs had resulted in discrimination against whites, especially white males.
Sam, a 33-year-old white air conditioning mechanic, said: "Today you have far more discrimination against whites with all these programs and, of course, them getting the benefit of the doubt the minute they cry racism compared to when we do. No one listens when we say anything, the laws favor them today. There's no such thing as equality. To me, it's a one-sided issue" [7-8].
Pincus assembles a large amount of evidence, from job statistics to EEOC handling of discrimination claims to court cases involving racial or sexual discrimination, which shows that these claims are false. White men still dominate most fields of work in the US, so they are still getting hired in large numbers, disproportionately compared to their numbers in the general population. (Pincus gives detailed figures on page 9 through 18.) This holds true even when differences in educational attainment are taken into account.

Further, the laws governing affirmative action in employment require employers to consider the qualifications of applicants for jobs or promotions. Pincus details these complex laws in chapter 2 of Reverse Discrimination. This requirement applies even when an employer has been so blatantly discriminatory that voluntary procedures for compliance have failed, and a court imposes a quota. "Quota" is a popular buzzword among opponents of affirmative action, but imposed quotas are relatively rare, a last resort when other measures have failed.
Even under quotas, employers are not forced to hire unqualified people. Generally, the employer has some criteria by which a prospective employee can be considered "qualified," such as an educational credential, a minimum level of experience. Employees who do not meet these criteria cannot be considered for the position. All those who do meet the criteria are seen as eligible to carry out the duties of the position [27].

There is a widespread belief, especially among whites, that quotas are common nationwide. However, it is getting more and more difficult for hiring and promotion quotas to meet the test of constitutionality. A variety of court decisions has resulted in a set of "strict scrutiny" criteria that must be met. First, there must be a "compelling state interest" to justify a quota. This is usually interpreted as combating intentional race or gender discrimination when no other policy is likely to work. Second, the quota system must be "narrowly tailored," which is generally interpreted as not "unduly trammeling" on the rights of white males. The consent decree cannot require that 100% of new hires be minorities because this would make it impossible for white males. In fact, the quota proportions must have some connection to the availability pool. In addition, the quota system cannot be in effect indefinitely; for instance, it may be in effect until the percentage of minority or female employees reaches a percentage equivalent to the availability pool.

In fact, court-appointed quotas are few and far between. Reskin ([The Realities of Affirmative Action in Employment, Washington DC, American Sociological Association,] 1998) says that there were only 51 court-approved quotas in effect in the early 1980s. It is generally illegal for an employer to voluntarily adopt a quota hiring system without obtaining court approval. Courts impose quotas only when there is a long history of explicit discrimination and the employer fails to take corrective action [28].
To repeat: white males are still being hired and promoted in disproportionate numbers in the US. They now face more competition from women and minority men than they did before the passage of the 1964 Civil Rights Act, but they still have the advantage. Pincus surveys court cases involving claims of racial discrimination by both blacks and whites, and concludes, "Everyone, regardless of their race or sex, has a difficult time proving claims of discrimination because the laws are very exacting" [137]. Sometimes white men win, which shows that in fact their complaints are listened to, and women and black people usually lose, which shows that they don't always "get the benefit of the doubt the minute they cry racism" or sexism. "There is no evidence that blacks are more successful than men in sex discrimination suits, although women are somewhat more successful than men in discrimination suits. Those who argue that the legal system is stacked against white men are simply wrong" [138].

Yet I still encounter the claim (and Pincus quotes some examples) that white men are being "punished" when jobs they want are given to women or black men. (Well, white men are "prominently positioned to discover racism.") Often this is accompanied by the claim that they are being punished for what white people did a hundred years ago, and that neither they nor their ancestors owned slaves. Racism, for these people, is a thing of the past. They do not, as far as I've been able to tell, think that black men or white women are being "punished" when jobs they want are given to white men. This seems to be the closest many whites can come to admitting that they think white men are entitled to entitled to jobs simply by virtue of being white men, and that no women or black men are qualified for the jobs white men want. (When Toni Morrison won the Nobel Prize for Literature in 1993, I was mildly surprised by how many white people claimed that Morrison had won solely because she was a black woman. The people I talked to generally hadn't read her work, but they took for granted she couldn't be good enough to win such a prize, or maybe any prize.)

Pincus quotes an article in which Pat Buchanan wrote: "A liberal elite is salving its social conscience by robbing America's white middle class of its birthright and handing it over to minorities, who just happen to vote for Democrats." Pincus comments, "It is not clear how the majority of white, middle-class Americans have 'birthright' to be admitted to Harvard, but feeling that they were 'robbed' of something would certainly make some of them angry" (51). Maybe if they voted for Democrats, they could get their "birthright" back.

Relatively few whites, it seems, will tell a pollster that they consider blacks inherently inferior -- that would be tacky, low-class -- but a good many more than will say so assume black inferiority, and that belief leaks out when they talk about racial discrimination in America. Antony Flew looks down on Jim Crow laws, but can't seem to get his fine mind around the idea that discrimination can take extra-legal, covert forms on a far wider scale even after legal discrimination has been overturned.

One final point: I've talked to a few white men, and heard of more, who say they were told by personnel staff that the jobs they'd applied for could only be given to blacks, that white men were not being hired. At first I dismissed these claims as folklore (especially the guy who claimed he was told that only unqualified blacks could be hired), but it turns out that people have in fact been told this. Why the personnel staff would tell such a lie I don't know. According to Pincus, some employers misunderstand how affirmative action is supposed to work, and impose quotas of their own; but this is illegal, and white males have won redress in the courts for it (see Pincus, page 122, for examples). I suspect some white personnel staff feel angry at having to hire minorities at all, and misrepresent company policy to disappointed white applicants; or maybe they do so in a "Don't blame me, I'm just following orders" way to someone they've had to turn down for whatever reason. Ironically, then, it does happen that some people are still being told explicitly that they were turned down because of their race -- but they seem mostly to be whites, and this is usually as false as the claim that blacks are not being turned down because of their race.