Paul Butler is associate professor of law at the George Washington University Law School, in Washington, D.C. He was formerly with the U.S. Justice Department's Public,Integrity Section, where he prosecuted, among others, a member of Congress, several law enforcement officials, and numerous federal agency employees. He is an honors graduate of Yale College and Harvard Law School.
This interview with Professor Butler was conducted by World & I editor Lloyd Eby.
The World & I: Professor Butler, do you think it's permissible--legally, ethically, or logically--for government to use race as a criterion for law and policy?
Paul Butler: It's permissible, desirable, and valuable. The Supreme Court has made it clear--and I agree--that the use of race can at times be good public policy, but not always.
W&I: When, for example, would it not be permissible?
Butler: I don't think that the way the government used race for most of this country's history is OK. The Jim Crow statutes instituted an American kind of apartheid, with black-only and white-only schools, water fountains, and so on. That is clearly an impermissible use of race.
W&I: Where does the law use race outside of affirmative action?
Butler: Two examples: It's perfectly permissible in most jurisdictions of the United States for police to consider race in determining whether someone is suspicious--to have a racial profile that says, "Well, gee, if that person's black, then he's more likely to be a drug courier." Another perfectly permissible use of race occurs in prison administration. If, for example, the warden of a prison determines that for disciplinary or other administrative reasons he needs to separate the black prisoners from the Chicano prisoners from the white prisoners, then that's perfectly permissible. These uses of race are upheld by the Supreme Court now, even though they may be very controversial.
W&I: What's the goal that you want to achieve with race preferences?
Butler: In my writing I've described three different goals. One is to compensate for past discrimination. That is, to put ethnic minorities--and here I'm thinking mainly of African Americans and Native Americans--where they would be, had the discrimination never occurred. That's a classic tort remedy in the law. When someone is injured, when he is deprived in some way by a circumstance that is not his own fault, then the responsible use of the law is to place him where he would be but for the injury. That's one goal of affirmative action--to compensate African Americans for the unimaginable injury of slavery and American apartheid.
The second goal is to compensate for ongoing discrimination, to achieve equal opportunity. The favoritism for certain groups in the United States is so strong that it can only be remedied by actively encouraging the promotion of other groups. Specifically, favoritism for white people in the United States is such a strong, inviolable part of our country that for African Americans to have a fair chance, they have to be actively considered.
The third goal is diversity, and that's President Clinton's goal when he says he wants a cabinet that looks more like America. That goal of affirmative action is to create a diverse setting, which we in America have always viewed, at least in our rhetoric, as a desirable thing because we understand that our strength comes from diversity.
Now, for whatever reason, we've seen that when race is not considered, when processes are ostensibly color-blind, this often results in environments that are not as diverse or as effective as they could be.
W&I: In his memoir Hunger of Memory, Richard Rodriguez speaks of his experience graduating with a Ph.D. and getting numerous good job offers because he is Hispanic and thus a member of a favored class, while other white colleagues in his class with similar qualifications got no offers or much poorer ones. …