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REAGAN’S NAVY SECY: “WHITE AMERICA…AN ETHNIC FAIRY TALE”

In 1995, in what Time called "a legal lightening bolt," the 

U.S. Supreme Court all but killed racial preferences in 

federal government contracting in a case litigated for a 

decade by Mountain States Legal Foundation, Adarand 

Constructors, Inc. v. Peña.  Therefore, in 1998, for the 

first time since it adopted racial quotas in government 

contracting in 1977, Congress debated the constitutionality 

of their use.  Nonetheless, Congress left its racial 

preference language unchanged, leaving it to the courts to 

declare it unconstitutional.

Instead of adhering strictly to the Supreme Court's 

commandments in Adarand, the U.S. Court of Appeals for the 

Tenth Circuit and then for the Eighth Circuit reinterpreted 

that ruling and upheld government's use of racial 

preferences in contracting.  Given three separate 

opportunities to rebuke the appellate courts for their 

refusal to follow Adarand, the Supreme Court declined to 

hear the cases, most recently in November 2003, over a 

vigorous dissent by Justice Scalia and Chief Justice 

Rehnquist.  Experts now await a split in the circuits.

That split may soon come, from an unusual source.  On 

February 11, the U.S. Court of Appeals for the Ninth Circuit 

heard arguments in a test of racial preferences in 

government contracting out of Washington.  Atypically for 

the Ninth Circuit, the three-judge panel has two 

conservative judges who may follow Adarand, sending the case 

to the Supreme Court.

If it gets there, it will be met by new scholarship that 

undermines the factual basis for governmental distinctions 

between European Americans and select groups of non-European 

Americans.  James Webb, the most highly-decorated Marine 

officer of the Vietnam War and Reagan's Secretary of the 

Navy, argues, in his first non-fiction work, Born Fighting, 

How the Scots-Irish Shaped America (New York: Broadway 

Books, 2004), that preferences are based on two erroneous 

assumptions:  "[A]nyone who was not a White Anglo-Saxon 

Protestant had grounds for complaint about his or her 

people's collective 'struggle.'  And anyone who was a WASP 

was by default a privileged, less-than-deserving 

whipping post."

Thus, because the history of the Scots-Irish, for example, 

was "both unknown and irrelevant" to Congress when it 

adopted racial quotas, the Scots-Irish, lost twice.  "First, 

since the dominant forces in American society were by 

assumption the WASP hierarchy, to be white, Protestant, and 

of British heritage immediately lumped one in with the New 

England Brahmin elites..."  ("In this perverted logic," notes 

Webb, it is as if all WASPS "had landed together on the same 

ship at Plymouth Rock and the smart ones had gone to Boston 

while the dumbest had somehow made their way to West 

Virginia.")  "Second, [t]o be of Southern descent brought 

with it an immediate presumption of invidious discrimination 

and cruelty dating back to the slave system and the unequal, 

segregated society that followed it."  This disregard for 

"the vast distinctions among white Americans" helped create 

"a statistical straw man of 'white America'" used to justify 

racial quotas, which "was nothing more than an imaginary 

façade.  Indeed, white America is so variegated that it is 

an ethnic fairy tale."

Had Congress sought to give lie to the fairy tale, it could 

have done so.  For example, writes Webb, in 1974, the 

University of Chicago's National Opinion Research Center 

(NORC) found that, "even prior to the major affirmative 

action programs, there was a greater variation within 'white 

America' than there was between white America and black 

America.  [I]n terms of education and income, the whites at 

the bottom were in approximately the same situation as 

blacks."  NORC's General Social Survey for 1980-2000 shows 

that, over the last thirty years, racial preferences have 

"exacerbated" the situation.  Concludes Webb, "these members 

of our society can hardly be called advantaged in a way that 

justifies legal discrimination against them as 

interchangeable members of a supposedly monolithic white 

majority."

If the Supreme Court wants a basis for ending racial 

preferences, in addition to its 1995 Adarand ruling, it 

could use James Webb's scholarship.

If you would like to support Mountain States Legal Foundation, 

click here.  MSLF’s sole source of support is the 

tax-deductible contributions it receives from people like you.

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