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Incoherent: ‘Civil Rights’ and Modern Liberalism

The Century Foundation's Richard Kahlenberg finds the term increasingly malleable.

by
John Rosenberg

Bio

March 15, 2012 - 12:00 am

Liberals increasingly seem to think that “civil rights” requires the implementation of the entire liberal agenda — from free contraception to freedom from exposure to unpleasant speech — and shields individuals from just about everything unpleasant except discrimination based on race, sex, or ethnicity.

Take Richard Kahlenberg, the Century Foundation’s tireless (if occasionally tiresome) advocate for class-based affirmative action. It is neither surprising nor objectionable that he opposes legacy preferences, as in fact do most critics of racial preferences. It is surprising, and more than a little odd, however, that he now argues that legacy preferences are or should be prohibited by civil rights statutes even though he is unwilling to say the same thing about preferences based on race.

I criticized his argument here, especially his curious notion that the 1866 Civil Rights Act prohibits admission preferences to legacies but that both that act and the even more robust 1964 Civil Rights Act happily tolerate admissions preference based on race. Somehow he manages to believe that awarding bonus points for legacy status runs afoul of the 1866 act’s prohibition of “ancestry”-based discrimination — even though the word “ancestry” does not appear in the act — but that discrimination based on race has nothing to do with ancestry.

Kahlenberg replied to my criticisms (my rejoinder follows his reply), and there and in other writings he does confess to being “somewhat ambivalent” about racial preference; admits to being “deeply troubled by the casual way in which many of my fellow liberals embrace the use of race in deciding who gets ahead in education and employment”; and claims to recognize ”the deep moral problems associated with judging people by skin color.” But, unlike what he managed to conclude about the illegality of legacy preferences, those hand-wringing qualms never lead him to conclude that the racial discrimination at the core of affirmative action as practiced today is or even should be regarded as unconstitutional or illegal. About as far as he ever goes is to say, as he does in a recent New Republic review, that “explicit preferences based on race are problematic” — not because they are morally or legally repugnant, but because so many whites oppose them.

Still, even though these ambivalent qualms pose no threat to the regime of racial preference and amount to no more than lip service to the principle of colorblind non-discrimination on which he willingly trespasses, perhaps even his ever-so-slight deviation from the party line on racial preference has created a need for Kahlenberg to burnish his liberal credentials. But whatever the reason, there he goes again, extending “civil rights” protections while ignoring their core purpose: he still regards the various Civil Rights Acts as no barrier to colleges awarding benefits and burdens based on race, but now wants to add a whole new area to what they cover.

In a forthcoming book, Why Labor Organizing Should Be a Civil Right, and a recent New York Times (where else?) op-ed titled “A Civil Right to Unionize” written with labor lawyer Moshe Z. Marvit, Kahlenberg calls for a revision of Title VII to protect union organizing. They write:

It’s time to add the right to organize a labor union, without employer discrimination, to Title VII of the Civil Rights Act, because that right is as fundamental as freedom from discrimination in employment and education.

They recognize that firing someone for trying to organize a union is already “technically illegal” under the National Labor Relations Act and that past efforts over 40 years to strengthen labor laws “have gotten bogged down,” i.e., Congress has stubbornly refused to pass them, but they nevertheless see no impediment to having the National Labor Relations Board regard union organizing as protected under Title VII.

In the several days since the appearance of that op-ed, as he points out in an essay in the Chronicle of Higher Education extending and amplifying his argument, Kahlenberg reveals that his simultaneous contraction and expansion of the concept of “civil rights” is not an idiosyncratic fantasy:

Richard Trumka, the president of the AFL-CIO, endorsed the concept of amending the Civil Rights Act to protect the fundamental right of labor organizing. The other big labor federation, Change to Win, republished the Times op-ed on its Web site. And gender, race, and politics scholar Melissa Harris-Perry articulated the case on her MSNBC show. The book itself has blurbs from a broad cross-section of civil rights and labor advocates, including Benjamin Jealous, president and CEO of the NAACP, Randi Weingarten, president of the American Federation of Teachers, Amy B. Dean, former president and CEO of the South Bay AFL-CIO Labor Council, and David Madland of the Center for American Progress.

But wait; there’s more. Not only do Kahlenberg et al. want to redefine “civil rights” to include union organizing; they also want these newly minted rights to protect illegal immigrants, pointing an accusing finger at Pomona College because:

In the middle of the union drive [to organize kitchen workers], Pomona fired 17 workers for failing to provide documentation of their legal status.

According to Kahlenberg in the Chronicle:

[The Pomona case] illustrates the deep connection between the labor movement, the immigrant-rights movement, and the civil-rights movement.

Title VII, for anyone needing a reminder, declares that it is illegal for an employer:

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Kahlenberg and all his liberal friends, of course, are perfectly free to “construe” this statute to protect union organizing. Courts, after all, have done far worse, construing it and its companion, Title VI, to permit the very discrimination based on race that is prohibited by their clear text. As Kahlenberg acknowledged in his reply to me cited above:

Title VI’s prohibition applies to everyone … but [it] has been read to permit discrimination in favor of under-represented minorities — and therefore against whites — as part of affirmative action programs.

I suppose we can take some small comfort from the infinite malleability of words in the liberal lexicon. What does it matter, after all, if Title VII is rewritten to define union organizing as a civil right if no one is bound to recognize that the words mean what they say? And even if the rewriting effort is successful it may not be likely that colleges will be hauled before the National Labor Relations Board or the EEOC (if a difference remains between them) for failing to provide admissions preferences to union organizers who are illegal immigrants (although given the history of affirmative action, we can’t be too sure about that).

Still, the amazing new adventures of Kahlenberg and friends redefining the meaning of civil rights — finding that it includes prohibition of legacy preferences and protection of union organizing but not the very thing the statutes were written to do, banning discrimination based on race — reveal and reflect the deep incoherence about the nature of discrimination that characterizes contemporary liberalism.

John Rosenberg blogs at Discriminations.
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