Just when the Supreme Court is beginning to reconsider “affirmative action” plans that provide preferences on the basis of race, the Secretary of Education, Lamar Alexander, has decided, at least pending further review, to throw his weight behind “minority” scholarships that discriminatorily exclude non-minority students on the basis of race. Remarkably, even some conservatives are arguing that we should “shut up about white firemen,” form an alliance with the black community, and wage a conservative war on poverty.

Why is it that conservatives so often panic when victory is at hand? I agree we need to fight poverty and I welcome blacks and other minorities on board the bandwagon, but I can’t shut up about white firemen. Nor can I forget about one of the heroes of my youth. Hank Aaron.

When scarce resources like jobs, public works contracts, and educational opportunities are distributed on the basis of race, individual whites are denied justice and blacks as a class are patronized and stigmatized. Two recent lawsuits illustrate these separate problems.

The white firemen who brought suit in Martin v. Wilks faced severe discrimination under an “affirmative action” plan. In 1983, the Birmingham fire department elevated five firefighters to lieutenant. Out of ninety-eight firemen who passed the test, the city promoted two whites, who ranked first and second, and then passed over more than seventy others to promote three blacks who scored 80th, 83rd, and 85th.

Just for a minute try to put yourself in the place of the firefighters who finished third, fourth, and fifth on that lieutenant’s test. How many hours did they study to prepare for the test? How many nights and weekends did they sacrifice? How many times did they miss their children’s school plays and sports activities to study fire department manuals and policies? What dreams did they dare to dream about this promotion and what it would mean for their families? No doubt these were modest dreams, the dreams of Reagan Democrats. The kind of dreams ordinary working folk dream when they anticipate a small move up. Dreams about buying a house, or setting aside a few dollars for college tuition. But they were important to these firefighters, and that should count for something.

How does it feel to be passed over for a promotion that was earned by performance on a fair test open to everyone? How does it feel to go to work every day and report to a superior officer who scored seventy or eighty places below you on the test? You are not about to burn a flag or stage a sit-in at the office of the fire commissioner, but our society’s commitment to “equal opportunity” rings hollow in your ears.

Across the country in another lawsuit, the New York City Police Department has established different passing scores on the sergeant’s examination for whites, Hispanics, and blacks. The passing score for a white officer is 75; for a Hispanic officer, 69; and for a black officer, 65. The unfairness to white officers from this scheme is apparent. But what is even more perverse is the way it stigmatizes Hispanic and black officers”a score of 70 is treated as a failure for a white officer, but is good enough for Hispanics and blacks. It’s like grandpa saying, “Mary really throws a baseball good, for a girl.”

Which brings me to Hank Aaron. As former Solicitor General Charles Fried once argued before the Supreme Court in an affirmative action case. Hank Aaron would not be regarded as the home run king of all time “if the fences had been moved in whenever he came to the plate.”

Calling double standards “affirmative action” does not fool anyone. Whether in the police department, an elite university, or baseball, lowered standards and expectations for minorities is a blatant badge of inferiority and an affront to their dignity and accomplishments.

Walter Williams, a black economist, refers to this scenario as the “How do you know?” problem. As in “How do you know that he earned his promotion?” An even worse effect of distributing jobs, promotions, and educational opportunities on the basis of race is the inner damage suffered by the beneficiaries of affirmative action, who themselves must question whether their achievements are real or merely the product of some kind of welfare program for middleclass minorities.

Much as I would like to be on the side of political fashion and support affirmative action, I keep running into two obstacles: the voices of those white firefighters whose dreams and legitimate expectations were crushed by good intentions run amok; and Hank Aaron, the home run king of all time.


Richard E. Duncan is the Sherman S. Welpton, Jr. Professor of Law at the University of Nebraska-Lincoln.

Articles by Richard E. Duncan

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