A FEW YEARS ago I was being shown around a farm in a historic area of the upper South. The house and outbuildings were antebellum in origin, but lovingly restored. I noticed, looking down a grassy slope, stone fences separating various fields.
Obviously it had taken someone a great deal of effort to dig up all the rocks on that place and use them to fashion miles of fences.
"Who built the rock fences?" I asked my guide.
"Oh," he said in an offhand manner, "those were probably done by the blacks and Irish."
His very 1990s mind had been turned back to the 1850s by my question, and what he expressed was an 1850s attitude that very much equated black slaves (as they were in that place at that time) and "Irish" as occupying pretty much the same social and economic strata -- and burdens.
This popped back into my mind this week as I thought about the Supreme Court's ruling on an affirmative action case out of Colorado. Monday's ruling -- which may reduce the scope of affirmative action programs -- restricts what Congress and the federal government can do to overcome past discrimination against racial minorities. The 5-4 majority of the court wanted to prevent reverse discrimination.
I think that what is really undermining further acceptance of affirmative action (set-asides, admission quotas, anything intended to overcome the harmful effects of past discrimination) is not the occasional brother-in-law who lost his job, or didn't get a job, because it had to go to a black, or a Hispanic or a woman. I think, rather, that it is the successful example of the descendants of those Irish fence-builders, and even more, the example of recent newcomers to this country, particularly from Asia.
The real questions being asked are like these: "Why are many of the nation's motels owned and/or operated by people from India and not by black people native to this country?" or "Why is it that there are too many overqualified applicants of Asian ancestry and too few who are native and black [or Hispanic]?"
The questions impute a failure on the part of the native black or Hispanic. Some might even go so far as to feel that blacks or Hispanics are as unworthy of preference as the Irish were when they came here to escape the potato famine of the 1840s and were treated like lepers. You know who achieved affirmative action for the Irish? The Irish themselves. Similar self-help has boosted Jewish-Americans and, more recently, Asian-Americans.
Women have taken great advantage of affirmative action. Some black men and Hispanics have. By and large, however, the poor have not. It seems that there is more to it than being "equal before the law," as Justice Clarence Thomas assumed this week.
"Equal before the law" makes you think back to Judge Roy Bean's famous ruling in the death of a Chinese laborer. Nowhere in the law books, he said, did he find any law against shooting a "Chinaman."
Now, the court is saying, we should recognize the humanity and individuality of those within all races. And that is one of the two really important thoughts to be expressed by the justices in this ruling. Justice Sandra Day O'Connor says the Constitution protects individuals, not groups. She's right, but that leaves us struggling with the fact that there has been discrimination against blacks (as against the Irish earlier) as a group as well as individually.
The other important idea is in Justice David Souter's dissent. Speaking of "remedial mechanisms" (affirmative action), Mr. Souter says that members of the "historically favored race" (whites) may be hurt. He says this "is a price to be paid only temporarily." The assumption is that the effects of past discrimination will recede and disappear.
So I see three problems with affirmative action: It attacks old discrimination by creating new privilege; it doesn't lift those on the bottom economically; and it is supposed to be temporary but isn't.
Thus we have a set of programs that are imperfect and unpopular. But the worst news is that in the face of lingering discrimination, all we critics of affirmative action can suggest as an alternative is to have the nation think pure thoughts and be optimistic.
Pat Truly is a columnist and editorial writer for the Fort Worth Star-Telegram.