Beyond quotas: a color-blind vision for affirmative action.

Clegg, Roger ; Meyerson, Adam ; Franc, Michael 等

The term "affirmative action" is dangerously ambiguous. To some it means simply public policies that afford individuals opportunity without discrimination. To others, it means the use of preferences in public life to assist groups on the basis of their race, ethnicity, or sex. Not surprisingly, many people oppose the preferences that constitute this second kind of affirmative action. But those who support preferences exploit the term's ambiguity to mask their agenda and claim broader support for it than they really have. Liberals as well as conservatives have criticized the institutionalization of preferences based on race, ethnicity, and sex that now honeycomb employment, contracting, and college admissions. These preferences can be blatant or subtle, but the basic problem is the same: Someone is gaining, or not gaining, some benefit because of his race, ethnicity, or sex. Call it whatever you like, but it's discriminatory, it's wrong, and it ought to be opposed.

Those of us who criticize preferences need to do a better job, however, of explaining the kind of affirmative action we favor. This includes not only aggressive anti-discrimination efforts, but also positive, race-neutral initiatives to create and publicize economic and educational opportunities for everyone willing and able to compete for them. What follows is an attempt to articulate the basis of a color-blind vision for affirmative action in government policy.

Rooting out Discrimination

When it first entered common usage in the 1960s, the term "affirmative action" meant aggressive nondiscrimination. Government agencies promised to take positive steps--that is, "affirmative" action--to ensure that neither they nor the contractors they hired discriminated. Discrimination against minorities, especially blacks, had been going on for years, and was deeply embedded in many places. Simply deciding not to discriminate would not be enough; that decision had to be announced, publicized, advertised, posted, codified, and enforced, over and over again, until everyone knew that the old way of doing business was no longer acceptable.

President Kennedy first used the term in the context of racial discrimination when he signed Executive Order No. 10,925 in 1961. The executive order read, "The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin."

This core meaning of affirmative action is still embedded in the law. The main guideline relative to affirmative action under Title VII of the Civil Rights Act of 1964, banning discrimination in private employment, states, "Affirmative action often improves opportunities for all members of the work force, as where affirmative action includes the posting of job vacancies. Similarly, the integration of previously segregated jobs means that all workers will be provided opportunities to enter jobs previously restricted."

This definition is completely consistent with the principle of color-blindness imbedded in the Constitution. Justice Sandra Day O'Connor wrote in City of Richmond v. J.A. Croson Co. (1989) that it is perfectly permissible for a city "to prohibit discrimination in the provision of credit or bonding by local suppliers and banks." In a recent decision overturning a county's race-conscious set-aside program, a federal court of appeals declared: "The first measure every government ought to take to eradicate discrimination is to clean its own house and to ensure that its own operations are run on a strictly race- and ethnicity-neutral basis. The County has made no effort to do that. Nor has the County passed local ordinances to outlaw discrimination by local contractors, subcontractors, suppliers, bankers, or insurers. Instead of turning to race- and ethnicity-conscious remedies as a last resort, the County has turned to them as a first resort" (Engineering Contractors Association v. Metropolitan Dade County).

Nor should we deny the happy fact that racial discrimination is not as severe as it was a generation ago. It is the principle of nondiscrimination--not preferences--that has best ensured progress toward equal opportunity so far and that offers the best course for the future. George R. LaNoue and John C. Sullivan, scholars at the University of Maryland-Baltimore County, are experts on racial preferences in government contracting. They contend that governments embracing preferences typically have not first exhausted their options for rooting out discrimination in their practices. They have argued that, in lieu of racial preferences, governments should create "effective legal sanctions against discrimination connected to [their] procurement process and . . . vigorously enforce them" and reduce "the unnecessary barriers firms (small and minority) face in [their] procurement process."

If government administrators are discriminating against minority-owned contractors, they write, "bureaucrats can be disciplined and removed. If prime contractors are discriminating against minority subcontractors, contractors can be debarred. If lenders, insurers, or bonders are discriminating, they can lose their licenses or be fined." They lament that "there has been very little development of grievance procedures or even ombudsmen offices where issues in public contracting could be considered to determine if they were matters of poor communication, inappropriate business practices, or discrimination."

LaNoue and Sullivan recently advised the City of West Palm Beach, Florida, to ensure that all its employees and contractors know that "it is illegal to discriminate in the awarding or implementing of any city contract," that "it is illegal for any prime contractor to discriminate in any practice regarding the employment of subcontractors on city contracts," and that "it is illegal for any bonder, supplier, insurer, licensor, trade association or union to discriminate in connection with any city contract."

Casting a Wider Net

In addition to a policy of aggressive nondiscrimination, governments can take many additional steps to ensure that eligible outsiders know about and apply for jobs, contracts, educational opportunities, and the like. Public officials can advertise educational, employment, and contracting opportunities in a wide variety of forums; speak and write to high schools, colleges, unions, and trade associations; and educate people about the application process.

It is often in the government's long-term interest to help develop the talent in groups of individuals or companies. Newer and smaller companies may merit special help in meeting the bonding requirements for federal contracts. Low-income areas may be a promising source of workers, if their residents are offered training and transportation. In education, older individuals may have promising second careers if they are retrained, and the government could encourage these moves through a variety of financial incentives; promising disadvantaged students can be given SAT coaching and encouraged to apply to college; financially strapped students with potential may deserve government loans or scholarships, and those from depressed areas or broken homes may deserve a second look from colleges in spite of their academic performance. But there is no reason to consider race in any of these cases.

Conversely, governments, employers, and universities should eliminate any selection criteria that unfairly and unwisely discourage participation in their programs, such as a rule that only contractors with five years' experience will be considered for a government contract. State and local officials should examine regulations that impede entry-level jobs and businesses, such as occupational licensing laws and government monopolies.

Education

There are probably few factors as important to the pursuit of economic opportunity by minority groups as higher education, and few areas in which racial preferences are more pervasive. A number of universities, however, are demonstrating ways they can open their doors to disadvantaged individuals without resorting to preferential treatment based on race.

First, however, a word of caution. The programs discussed in this article purport to be nonpreferential, but perhaps some are not so administered. The point is that the success of these programs in no way hinges on such preferences, and, indeed, would be compromised by them.

The Trio Programs. The federal government funds color-blind programs primarily for students from low-income families that have never had any member graduate from college. Administered through the National Council of Educational Opportunity Associations, the $500-million Trio initiative includes Upward Bound, which offers extra tutoring in core subjects to secondary students in 680 schools around the country; Talent Search, whose 320 chapters counsel about 300,000 high-school students on college opportunities; and Student Support Services (SSS), which provides academic tutoring and counseling to students at more than 700 colleges. There is evidence that the programs are succeeding. Upward Bound, for instance, has been shown to prompt students to tackle a more rigorous high-school curriculum and raise their expectations of continuing on to college.

University of Maryland at College Park. At the University of Maryland, the Academic Achievement Program offers about 120 promising students with marginal high-school records another opportunity to matriculate. The students, who all come from low-income families or families in which no one has ever graduated from college, attend a summer session to learn study skills, take special writing and math courses, and receive academic counseling. If admitted, they follow a highly structured curriculum as freshmen, and receive support services such as academic and career counseling during their first two years. The program ends after the second year.

University of California. Since the University of California (UC) Board of Regents voted two years ago to abolish racial preferences in admissions, the nine-campus system has expanded opportunities for the economically and educationally disadvantaged without lowering admission standards. In the last two years, the system has begun or expanded a range of programs designed to help prospective applicants overcome barriers to matriculation and graduation. It is expanding programs that provide academic enrichment to K-12 students and that have already boosted college enrollment from low-performing secondary schools. UC campuses also are forming partnerships with neighboring school districts to provide mentoring and preparation for college-level work to students in low-performing schools.

A prime example is the Berkeley Pledge program. With the help of undergraduate volunteers, this program targets 40 low-performing schools in four districts near the university (with large populations of minority and low-income children) for curriculum development, summer school classes, and extra tutoring in core subjects. After one year, those schools showed statistically significant improvements in grades and standardized test scores.

Employment

Glenn Loury, a Boston University economist, recently told President Clinton's race advisory panel that the economic disparity between minorities and whites is caused by limited opportunity, disparities in job skills, and "behaviors," particularly among blacks, that he said make them undesirable on the job market. Hence Loury recommends "developmental affirmative action," which would extend training opportunities to underskilled people on some type of nonracial basis.

After a high-school or college graduate enters the work force, employers can offer affirmative action programs on a race-neutral basis. The United Federation of Teachers (UFT), a New York City union, has an apprenticeship program for paraprofessionals that has helped thousands move up the career ladder, obtaining education and credentials so that they can become full-fledged teachers. The UFT program provides tuition assistance and counseling, and has been replicated in other American Federation of Teachers locals. And mentoring programs, which are frequently used now by companies on a racially exclusive basis, could be offered just as easily to all eligible employees.

Government agencies also can learn from private employers. In a 1988 Hudson Institute study, Clint Bolick and Susan Nestleroth collected a variety of corporate initiatives. Some of the programs discussed by Bolick and Nestleroth have not been race neutral, but it would be easy in most cases to employ them in a race-neutral fashion.

Aetna Life & Casualty's Institute for Corporate Education has run an Effective Business Skills School, a basic skills program with three goals: moving unskilled individuals into its workforce, training existing unskilled or low-skilled workers for higher positions, and offering workers night courses in supplemental skills.

Shawmut Bank in Boston, the authors wrote, "provides training not only in such skills as data entry, but also in such areas as basic English, basic mathematics, and reading comprehension. Moreover, the second and third days of orientation for new employees include training in corporate citizenship, with skills such as dealing with customers and answering the telephone."

Bolick and Nestleroth acknowledged that "[n]ot every company can provide basic skills training itself." They can, however, pool their resources to provide such training by forming a consortium with companies requiring similar specialized skills, working with training facilities provided by civic groups such as the National Urban League, or encouraging local business groups to create training centers.

Bolick and Nestleroth urged that employers "bring information about job opportunities to the source of labor." Conversely, employers can bring the labor supply to job opportunities. Polycast Technology Corp. in Stamford, Connecticut, for instance, has used a private van company to provide round-the-clock transportation for factory workers and machine operators from the Bronx. Likewise, in Atlanta, Temp Force, Inc. has offered transportation for temporary workers to suburban companies.

Other programs that employers have adopted to expand the pool of workers available to them include literacy training, internships and work-study, public-school partnerships, and seed money for promising educational programs.

Thus, Carolina Power & Light Company has run a "Career Beginnings" program for high-school juniors who have demonstrated tenacity and drive but who are at risk of dropping out of school because of financial, personal, or family pressures. Seafirst Bank in Seattle has operated a Youth Job Program, a long-term employment and educational project to encourage low-income, at-risk high-school students to finish school. This program also supports higher education and vocational training beyond high school through employment, mentoring, and scholarship assistance.

Contracting

LaNoue and Sullivan explain that contracting outreach includes "workshops, seminars, and business forums for small business owners, as well as on-the-job-site training for their unskilled workers seeking to acquire specialized skills." They point out that, in North Carolina, the Entrepreneurial Development Program provides "practical training through one-week sessions where inexperienced small business owners actually plan a simulated project, prepare a bid, and attend a bid opening." Other outreach ideas discussed by LaNoue and Sullivan include:

* Teaching government contracting staff more about the nature of small business, and introducing staff members to new firms;

* placing advertisements in a wide range of publications, including minority publications, especially on smaller contracts which often are not otherwise advertised by the government;

* creating a statewide databank program to help small businesses locate bid opportunities with federal, state, and local governments (the Florida Department of General Services's "Info-Bid" is such a program); and

* operating a toll-free hotline by which contractors can get information on projects, pre-bid conferences, and bid openings.

Justice O'Connor's opinion in Croson suggested a number of race-neutral measures that government contractors might use, including: "[s]implification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races . . . ." LaNoue and Sullivan also point to a "variety of capital assistance programs," including direct loans, loan guarantees, and revolving loans, and tax-exempt industrial bonds." They note that bonding requirements can be lowered--for instance, the Port Authority for New York and New Jersey eliminated such bonds for contracts under $250,000. To reduce arbitrary or discriminatory rejections, federal legislation has been proposed to require underwriters to explain to contractors why they were denied bonding.

LaNoue and Sullivan recently advised West Palm Beach, Florida, to require that any prime contractor "solicit subcontractors in a way as to make opportunities available to a broad variety of firms and choose its subcontractors in some objective way." A city can lower barriers to participation by "providing training, information, loans, etc." and by "target[ing] procurement opportunities to types of businesses it wishes to encourage," such as small businesses, emerging or new businesses, businesses that have not previously or recently held a city contract, businesses that have had credit difficulties, or businesses located in economically depressed neighborhoods.

Governments can look to a number of model programs, both public and private, that are expanding opportunities to small contractors and other businesses without regard to race.

Miami-Dade County Community Small Business Enterprise Program. In May 1997, Dade County, Florida, approved a race-neutral Community Small Business Enterprise Program. The ultimate goal of the program is to steer about 10 percent of the county's $300 million in annual construction contracts to local small businesses. To certify as a CSBE, a company must not exceed a certain threshold for annual gross receipts (which varies by type of company). The county also requires that the combined net worth of the firm's owners not exceed $750,000.

Once the firms are certified, the county allows CSBEs to bid competitively on set-aside contracts for small businesses, provides management and technical assistance from consultants and construction professionals, offers working capital and financial assistance for surety bonding, and brokers a mentor relationship with a more established local firm that can help identify weaknesses in the CSBE's bids or business plans.

Since the program began last year, about 195 firms have been certified as CSBEs, and about 18 set-aside contracts totaling $63 million have been awarded.

New York's Locally Based Enterprise (LBE) Program. In 1980, New York City established a race-neutral program for Locally Based Enterprises (LBEs) with the goal of setting aside at least 10 percent of the city's construction contracts for small, local firms. This goal is served by requiring government contractors who use subcontractors to use LBEs for 10 percent of the entire contract. LBEs also are exempt from the need to secure the payment and performance surety bonds usually required of contractors and receive help in locating working capital. To qualify, a firm must be located within the city and owned and operated independently, gross less than $2 million annually, and perform at least 25 percent of its business in the city's designated "economic development" areas.

Between 1982 and 1989, according to then-Mayor Ed Koch, 575 LBEs (qualifying under slightly different criteria) won contracts valued at $375 million. In 1992, unfortunately, the program was essentially superseded by a new gender- and race-conscious set-aside program for bids on all the city's goods and services as well as construction. If Mayor Rudolph Giuliani takes no action to renew the race-conscious program, however, it will automatically sunset in June and the LBE program will resume.

The Small Business Enterprise (SBE) program of Los Angeles County Metropolitan Transportation Authority. The Metropolitan Transportation Authority (MTA) of L.A. County adopted a plan last September to create a Small Business Enterprise (SBE) program for all MTA contracts not funded with any federal dollars. The MTA maintains a database of more than 200 qualified SBEs. Before putting each contract out for bid by prime contractors, the MTA consults its database, examines the contract for suitable opportunities for SBE participation, determines a goal for the percentage of the job that ought to be subcontracted to SBEs, and asks all prime bidders to submit a plan for achieving that goal. Prime contractors may consult the MTA's database of SBE subcontractors.

The Stempel Plan for Business Mentoring. The Associated General Contractors (AGC), a national trade association for construction-related firms that has long opposed race-based set-asides, has an excellent mentoring program to aid and develop small contractors of all races.

Called the Stempel Plan, the program aims to match small, new contractors, or "proteges," with older, larger, more experienced firms, or "mentors." The idea is to match two mentors with each protege to offer technical assistance and advice on bidding for contracts, keeping the books, meeting government accounting standards, securing surety bonding and capital, and other vital management issues. The two chapters established so far take on only 10 or 20 proteges at a time, work with each one for several years, and measure success by each firm's progress toward its self-imposed goals.

Each local Stempel program may choose its own criteria for admission and the exact terms of participation. For example, the Port of Portland, Oregon (a public agency) supplements the mentors with paid consultants in such areas as management, accounting, and engineering. The AGC chapter in Kansas City, Missouri, on the other hand, is independent of government and supplements the business expertise of mentors with volunteer professionals.

Plenty of jurisdictions still resort to unconstitutional preference programs to encourage the participation of small, usually local businesses in bidding for government contracts. Nevertheless, even these programs can offer ideas for race-neutral methods for opening up opportunity to small businesses. To create such opportunities, state and local governments can:

* Maintain a databank of qualified small businesses and keep them informed of coming contracting opportunities;

* solicit bids aggressively for each government contract from all qualified local small businesses;

* divide larger contracts into smaller pieces to permit maximum small business participation (when economically feasible); and

* advise small businesses on the practices and bids of past successful bidders.

Opportunity--Not Discrimination

As the public debate over acceptable and unacceptable forms of affirmative action unfolds, it is crucial that opponents of preferences understand that, while all forms of preferences are wrong, not all forms are blatant. Defenders of preferences will try to exploit this. They always insist on labeling their programs "affirmative action" rather than "preferences," because they believe--with some support--that Americans support the former but not the latter. Thus, Mayor Bob Lanier of Houston cleverly used his authority to rewrite the official description of an initiative on his city's ballot last fall, changing its wording from anti-preference to anti-affirmative action. The initiative was defeated, and many attributed the loss to the relabeling.

The term "affirmative action" is of decreasing utility, but it is not hard to define a preference. If somebody's race, ethnicity, or sex weighs in a person's favor when some judgment or decision is being made, that person has received a preference because of race, ethnicity, or sex. A preference, in other words, is a form of discrimination. It does not matter whether the beneficiary of the preference meets some set of other, minimum qualifications. It doesn't matter whether other factors are also considered, or that there are no precise quotas. If the government puts its thumb on the scale because of race, then it has used a preference.

This is wrong. The government may not draw racial distinctions among its citizens and treat them differently on that basis. Preferences are unconstitutional, except in a very narrow set of circumstances. The Fourteenth Amendment to the Constitution, passed during Reconstruction, guarantees to all Americans the "equal protection of the laws," and the Supreme Court has made clear that this prohibits all government classifications based on race, except when "narrowly tailored" to achieve a "compelling interest."

It will be a rare situation that a racial preference can pass this "strict scrutiny," which is the most difficult standard that the Court recognizes in its constitutional cases. (See the Court's opinions in Adarand Constructors, Inc. v. Pena [1995] and City of Richmond v. J.A. Croson Co. [1989].) And if a race-neutral remedy is sufficient to cure a race-based problem, said the Eleventh Circuit Court of Appeals, "then a race-conscious remedy can never be narrowly tailored to that problem." (Engineering Contractors Association v. Metropolitan Dade County [1997].)

Recruiting and outreach preferences. Recruiting and outreach efforts that are race neutral are, as discussed earlier, an example of good affirmative action. It is nonetheless frequently suggested that, while it is objectionable to consider race in awarding, say, a contract, it is permissible to make special efforts to encourage women and minorities to apply for that contract. The idea is that this ensures that a "wider net" is cast at the recruitment stage, and that this outreach is not discriminatory so long as, when the contract actually is awarded, the bidder's race, ethnicity, and sex are ignored.

Similar outreach programs are often proposed in education, employment, and other contexts. There, too, a distinction is drawn between preferences at the recruitment stage and preferences when the ultimate admission, hiring, or other decision is made.

This approach, however, is flawed. First, as a philosophical and constitutional matter, it cannot be denied that a racial classification is still being used by the government. Strict scrutiny will be required, and it will be very difficult to show that these racial classifications are narrowly tailored to achieving some compelling governmental purpose.

The racial classification is not only a problem theoretically, but can result in real injustices. Suppose there are two contractors--one black and one white--who would be eligible to bid on a government contract. The black contractor gets a letter from the government apprising him of the opportunity and encouraging him to bid, and the white one does not. This is discrimination based on race, and presumably the existence of such a practice will mean that sometimes the black contractor will get the contract and the white one won't. Otherwise, what's the point of the letter?

Another problem with this approach is that, as an administrative matter, it seems likely that the bureaucrats enforcing the requirement of race-based recruiting will find ways to encourage race-based awards, too. It will be easy for them to suggest to prime contractors that their recruitment efforts will be challenged if the actual subcontracting awards result in "underrepresentation" of minorities and women; this tactic has been pursued for years in the employment context by the Office of Federal Contract Compliance Programs in the Department of Labor.

Likewise, if racial classifications are said to be permissible for "outreach" programs but not for "nonoutreach" programs, the bureaucrats will simply play the semantic game of relabeling all racially preferential programs as outreach programs. Thus, the Justice Department recently advised the state of Delaware that its racially exclusive scholarship program "was a recruitment or 'outreach' program" and thus "did not fall afoul of Adarand."

Predictable subterfuges. The problem of bureaucratic intransigence has broader importance. Bureaucrats who have been administering a program in a particular way for years will not want to change, for reasons of both ideology and laziness. During the 1980s, for instance, federal agencies were told to stop using racial preferences and, instead, to grant a preference to any business that was "socially and economically disadvantaged." As a practical matter, however, this did not result in much change, since the bureaucracy simply proceeded to presume that all minority-owned companies met the "new" criterion and that no white-owned companies did.

Accordingly, a ban on affirmative action for minorities that requires affirmative action for the "socially and economically disadvantaged" is likely to result in little change. Any new category must not be defined in a vague and open-ended way, because the bureaucrats will do their best to shoehorn their old classifications into the new boxes. Only if the new classifications are clearly and objectively defined will they have any chance of success.

Race-conscious below the surface. If we reject statutes that classify according to race with respect either to awards or outreach and that are likely to be administered in a race-based way, the legislator who wants desperately to support a program that "replaces" preferences and still helps minorities will naturally be tempted to support selection criteria that are neutral on their face--but designed to help those minorities.

In Texas, for instance, when the university system had to abandon race-based preferences as a result of a court ruling, the Wall Street Journal reported that a bill was introduced in the state house that "would require admission of the top 10 percent of each high school, assuring the entry of students at largely black and Hispanic schools regardless of their national test scores." Likewise, a proposal in the state senate "would set aside fully 40 percent of university admissions for poor or disadvantaged students, but would widen the definition of disadvantage so much that many middle-class minorities would still have a chance to qualify." Both proposals were offered with the expectation that more minorities would be chosen than under the nonpreferential use of the old criteria. The house proposal passed.

Similarly, the University of California system is considering whether to rely less on SAT scores because of concerns that, in the post-Proposition 209 world, the use of standardized tests will result in too few blacks and Hispanics at its top schools.

But this approach is not acceptable either. In deciding whether an approach is truly nondiscriminatory, it is always useful to put the shoe on the other foot--that is, to ask whether a similar course of action would be permissible if it hurt minorities. Suppose that Texas or California had been ordered to stop discriminating against blacks and then decided to change its selection criteria to maintain the status quo. That would not be allowed, because the deliberate adoption of even neutral criteria because of their racial impact is still discrimination.

Note that this is not the same thing as the (correctly) criticized "disparate impact" theory of discrimination, which holds that facially neutral criteria are illegal if they have a disparate impact on a racial minority even if they are not adopted with discriminatory intent (see Griggs v. Duke Power Co., 1971). Here the criteria are adopted with discriminatory intent.

Thus, if the government decides that it will set aside a portion of its contracts for companies that were started up within the last three years because it calculates that, by doing so, it will increase the number of minority-owned businesses that receive contracts, it has violated the Constitution. On the other hand, if it makes the same decision because, for economic reasons, it thinks that new companies should be encouraged to bid on government contracts, it has not violated the law. The Supreme Court has made clear that the issue of discriminatory intent is crucial.

Words of Caution

Even many conservative opponents of preferences seem to have concluded for political reasons that any legislation aiming to abolish preferences must include support for some other kind of affirmative action. Thus, Representative Charles Canady is rewriting his legislation banning federal preferences based on race, ethnicity, or sex--which was tabled last year when moderate Republicans defected--to mandate affirmative action. Senator Mitch McConnell, who has offered an amendment to the federal highways program that would ban the use of such preferences in government contracting, has included a similar provision in his bill.

But we have seen that there is a right kind and a wrong kind of affirmative action. Any legislation motivated by its impact on a particular racial group is constitutionally suspect. If a legislator wants to replace preferences with a program that helps minorities because the new program is, like preferences, aimed at helping minorities, then he is contemplating an unconstitutional act. The mindset that sees every program through the prism of race has to be discarded.

Where minorities are "underrepresented" in a particular field, it may be because of discrimination, but--happily--this is less and less likely to be the case. It may be because of simple lack of interest in a particular area. Not every ethnic group will be mirrored precisely in every profession; some will gravitate to certain sectors of the economy, other groups to other sectors, for a wide variety of historical and social reasons. There is nothing sinister in this.

Where someone is interested in a particular area and, for nondiscriminatory reasons, is not succeeding, there may be a legitimate role for government. But when a person fails to achieve because of a lack of skills, it is better for government to help the person acquire those skills than simply to redistribute the achievement to him.

Moreover, not every nondiscriminatory program is a good program. New proposals should be evaluated by the same criteria with which conservatives judge any new government proposal. In particular, we must beware of the unintended consequences that inevitably follow when the government creates programs that ease the adverse results of circumstances created by individuals themselves.

Preferences are a poor way to fight discrimination--their original rationale--because they create resentment among whites and a victim mentality among minorities, rubbing salt into our racial wounds rather than healing them. They gloss over our worst social problems, which affect minorities disproportionately, though not exclusively: illegitimacy, crime, drug use, and deteriorating public schools, especially in our inner cities. It is these problems that keep many minorities from developing the skills needed to compete for diplomas, jobs, and contracts, and that make preferences seem necessary. The better approach is to attack the underlying problems themselves.

Great Society programs and the liberal culture of permissiveness must shoulder much of the blame for destroying black families and the inner city; the educational establishment has ruined many public schools, especially in those same urban areas; government regulation hurts new and smaller companies more than older, established ones. Charter schools, merit-based pay for teachers, and vouchers; less government regulation, perhaps targeted at enterprise and empowerment zones; and--especially--reinvigorated inner-city churches point the way to greater progress for all Americans, and especially black Americans.

Conservatives must focus on opportunity--not on mandating proportional representation, not on eclipsing opportunities for some in order to redistribute goodies to others. And the government should not discourage people from making the most of opportunities they already have.

Roger Clegg is the general counsel of the Center for Equal Opportunity, (http://www.ceousa.org/) a conservative, Washington, D.C.-based think tank. Clegg is a graduate of Yale Law School, and served for four years in the Reagan and Bush administrations as a deputy in the Justice Department's civil rights division.