A Question of Fairness

Clarence Thomas, a black, is Ronald Reagan's chairman of the Equal Employment Opportunity Commission. He walks a lonely road, not really agreeing with conservatives or liberals.

Thomas remembers a "self-hate" stage, where "you hate yourself for being part of a group that's gotten the hell kicked out of them." He tried to fit in. He avoided every form of stereotypical behavior attributed to blacks. He took pains to speak perfectly—not in slang, not loudly. He stressed academic achievement. But acceptance did not come. When he left the seminary, he held a conviction he has carried since: there is nothing a black man can do to be accepted by whites. Consequently, despite his anger at segregation, he does not automatically grant that integration is good for black people. Thomas wants to know in every instance what integration means for blacks. If it means losing the alternative of going to their own schools, running their own businesses, then he doesn't like it. He has too many scars from episodes in which, in the name of integration, he was the only black. Today he says, "The whole push to assimilate simply does not make sense to me."

Thomas's skepticism about integration was heightened in 1967, when he enrolled at Immaculate Conception Seminary in Missouri to continue his training for the priesthood. He stayed only eight months. Martin Luther King, Jr., was shot in April of 1968. As Thomas entered a room that day, he heard one white seminarian say, "Good, I hope the son of a bitch dies." That was the end of the seminary. Alienated from whites, alienated from the kids in his neighborhood as a result of having been away at school, and alienated, finally, from his grandfather over leaving the seminary, Thomas worked for a while and then went north to Holy Cross. He paid his tuition with a combination of scholarships, work-study (washing dishes in the kitchen), and loans. His militancy became pronounced. He led the free-breakfast program for black schoolchildren in Worcester, Massachusetts, dallied with the Black Panthers, and urged a black walkout at the college over the issue of investment in South Africa. All the while he kept up a near perfect academic record. Eventually Thomas decided he wanted to be a lawyer, and he was accepted by Yale Law School.

At Yale, Thomas avoided his professors and sat in the back of the classroom. He did not want to be identified as a black student—one who perhaps had been admitted and must be coddled precisely because he was black. He shunned courses touching on civil rights, instead studying tax law, legal accounting, antitrust law, and property law. He remembers feeling the "monkey was on my back" because classmates believed that he and the dozen or so other blacks in his class were there to satisfy the school's social-policy goals, not because of their academic qualifications. Nevertheless, Thomas thrived academically. Sitting in the back of the classroom and working anonymously in the library, he earned good grades. He was less impressed by the hard-edged minutiae of the law than by the notion that he was competing successfully with the best white minds. Yale gave him renewed confidence even as he was, in effect, hiding his face to avoid calling attention to his race. Confusion and contradiction reigned in his life. He felt alienated from a system that was trying to open itself to him, and became more of a loner than he had been before.

Even as Thomas turned inward, he was being urged into a position of leadership by other black students, who were pressing Yale to accept more blacks. Thomas did not take the assignment. He saw that many of the blacks who started Yale Law School did not graduate. Most of those who did graduate were the sons and daughters of black lawyers, doctors, and teachers. Thomas could not justify leading protests to get more Yale law degrees for middle class blacks. "If quotas help you, fine," he has told me. "If they make your life wonderful, fine. If they get you a BMW or Mercedes, say that is why you want quotas. Man, quotas are for the black middle class. But look at what's happening to the masses. Those are my people. They are just where they were before any of these policies."

At the end of law school Thomas felt no debt to whites at Yale for allowing a black man from a poor family to go to school there. The suggestion that his education is proof of the good done by affirmative-action policies, executed in good faith to end the harmful cycle of broken families, bad schools, and unemployment, angers him. "I don't think black people are indebted to anybody for anything. Nobody has done us any favors in this country, buddy. This thing about how they let me into Yale—that kind of stuff offends me. All they did was stop stopping us."

As Yale ended and job interviews began, Thomas found himself singled out again. Recruiters from top firms kept mentioning that their firms would allow him to do pro bono work. He bolted from some interviews in anger. White students told him pro bono work was not mentioned in their interviews. "I went to law school to be a lawyer, not a social worker. If I want to be a social worker, I'll do it on my own time." Thomas ultimately took a job with another Yale alumnus, John Danforth, now a U.S. senator but at the time Missouri's Republican attorney general. Danforth didn't mention pro bono work. He promised Thomas no special treatment because of his race. Thomas became counsel to the state department of revenue and the tax commission. He avoided work on any racial issues, insisting that he would be judged a second-rate intellect by people who would assume that he was involved only because he was black. "Danforth was a good guy," Thomas said once. "He ignored the hell out of me."

Thomas worked for the State of Missouri for almost three years, and then went to work for Monsanto, the chemical company. In 1979 he rejoined Danforth, in the Senator's Washington office, again working on non-civil-rights issues, such as energy and the environment. And he became a Republican.

A month before Ronald Reagan's first inauguration Clarence Thomas paid his way to San Francisco for a conference of black conservatives. Reagan's overwhelming election victory, won with almost no black support, had put the spotlight on the few blacks who counted themselves in his camp. Except for Thomas Sowell, the economist, most of the black conservatives were, like Thomas, relatively unknown. They took gleefully to the sudden attention from the press. I was then an editorial writer for The Washington Post, and I flew to San Francisco to hear the policy arguments being made by Ronald Reagan's black admirers.

Thomas was the most interesting of a very self-important crowd, because he was so brutally candid. In discussing welfare policy he explained that his opposition to public assistance was an outgrowth of his sister's experience on welfare in Georgia. "She gets mad when the mailman is late with her welfare check," he said. "That is how dependent she is. What's worse is that now her kids feel entitled to the check too. They have no motivation for doing better or getting out of that situation. His frankness in reflecting on his own position as a black conservative is, in retrospect, touched by irony. "If I ever went to work for the EEOC or did anything directly connected with blacks, my career would be irreparably ruined. The monkey would be on my back to prove that I didn't have the job because I'm black. People meeting me for the first time would automatically dismiss my thinking as second-rate."

I wrote a column for the Post about Thomas that drew the attention of the Reagan transition team. Various jobs in the Administration were discussed. Thomas, however, was reluctant to move to the executive branch. The column had attracted as much criticism from the left as interest from the right. Thomas was uncomfortable. Finally, though, in May of 1981, despite his misgivings, he joined the Administration as the Department of Education's assistant secretary for civil rights. He kept a low profile and generally avoided the press. But he stirred controversy among civil-rights activists from the start. For example, he set out rather quickly to overturn the government's policy of pressing southern states to unify their separate white and black college systems, arguing that an end to the so-called dual system would mean an end to the historically black colleges that had educated a majority of the nation's black professionals. Civil-rights groups saw him as playing into the hands of southern white separatists. Thomas did not have time to ride out the storm. Eight months after he began his job at the Department of Education, the President nominated him to head the EEOC. He became the only black with any real power in the Reagan Administration on matters involving civil rights. (Clarence Pendleton, the chairman of the U.S. Civil Rights Commission, is empowered only to conduct studies and make recommendations. )

Soon after Thomas's nomination he and I began meeting regularly for informal conversations, most of them on the record. I was by then a White House correspondent, and Thomas thought that the conversations would be advantageous to him. Eventually we began to talk easily and at length. He was outspoken and frank in discussing his shifting thoughts on civil rights, his frustrations, and his worries about his status within the Administration.

The Equal Employment Opportunity Commission was created by the Civil Rights Act of 1964, as a means to enforce statutory prohibitions against job discrimination on the basis of race, sex, color, religion, or national origin. The commission has five members, who review every case recommended by the EEOC's general counsel as possible material for a lawsuit. All the members are political appointees. As the chairman, Thomas oversees the agency's lawyers and regulators—a significant source of influence. The EEOC's power is limited to investigating a charge and seeking a settlement with the employee. The agency can subpoena evidence, take testimony, and file suit on behalf of a defendant or a class of defendants. The EEOC cannot itself fine or penalize the employer any other way. The agency also has a congressional mandate to deal with employer discrimination on the basis of age, as well as to investigate violations of the Equal Pay Act (which requires that equal pay be given to persons doing the same job).

Should General Motors be prodded to train more women welders? Should companies, reasoning that older workers have pension income to make up for a loss of salary, be allowed to lay off the elderly first? Are secretaries being paid less than janitors because secretarial work is a traditionally female occupation? Should a business be permitted to promote blacks who don't pass qualifying tests, on the grounds that five times as many blacks as whites fail such tests? These are the kinds of questions that come before the EEOC. For more than two decades an established part of American corporate life has consisted in trying to keep the EEOC at bay. Last year the commission processed 66,000 complaints. Whether the EEOC files a lawsuit in any particular case depends largely on Clarence Thomas's conception of fairness.

Thomas told me a story from his boyhood to illustrate what fairness means to him. He was on the back porch, playing blackjack for pennies with some other boys. As the game went on, one boy kept winning. Thomas finally saw how: the cards were marked. The game was stopped. There were angry words. Cards were thrown. From all sides fast fists snatched back lost money. There could be no equitable redistribution of the pot. The strongest, fastest hands, including those of the boy who had been cheating, got most of the pile of pennies. Some of the boys didn't get their money back. The cheater was threatened. The boys who snatched pennies that they had not lost were also threatened. But no one really wanted to fight—they wanted to keep playing cards. So a different deck was brought out and shuffled, and the game resumed with a simple promise of no more cheating.

That story, Thomas said, is a lot like the story of race relations in America. Whites had an unfair advantage. But in 1964, with the passage of the Civil Rights Act, the government stopped the cheating. The question now is, Should the government return the ill-gotten gains to the losers—the blacks, the Hispanics, and the women who were cheated by racism and sexism? Does fairness mean reaching back into the nation's past to undo the damage? Is the son entitled to recompense if the mother was a brilliant businesswoman who could not find a bank that would lend her money? How about the grandson of a black doctor who never earned as much as white practitioners but lived the life of the elite among blacks? Should American businesses have to compensate for the legacy of slavery—the poor, undereducated blacks living in dreary, stultifying ghettos that perpetuate perverse values? How would society, especially the society of government and business, make amends, even if making amends were its fervent goal?

Thomas believes that government simply cannot make amends, and therefore should not try. The best it can do is to deal a clean deck and let the game resume, enforcing the rules as they have now come to be understood. "There is no governmental solution," Thomas said. "It hasn't been used on any group. And I will ask those who proffer a governmental solution to show me which group in the history of this country was pulled up and put into the mainstream of the economy with governmental programs. The Irish weren't. The Jews weren't. Use what was used to get others into the economy. Show us the precedent for all this experimentation on our race."

He returned to the idea of the cheater on the porch: "I would be lying to you if I said that I didn't want sometimes to be able to cheat in favor of those of us who were cheated. But you have to ask yourself whether, in doing that, you do violence to the safe harbor, and that is the Constitution, which says you are to protect an individual's rights no matter what. Once you say that we can violate somebody else's rights in order to make up for what happened to blacks or other races or other groups in history, then are you setting a precedent for having certain circumstances in which you can overlook another person's rights?"

Individuals who are proven victims of discrimination have Clarence Thomas's EEOC on their side in the fight. But people who argue that they are victimized in corporate life as part of historical, across-the-board discrimination against a group find little sympathy at his agency. It could be, Thomas says, that blacks and women are generally unprepared to do certain kinds of work by their own choice. It could be that blacks choose not to study chemical engineering and that women choose to have babies instead of going to medical school.

If an employer over the years denies jobs to hundreds of qualified women or blacks because he does not want women or blacks working for him, Thomas is not prepared to see a "pattern and practice" of discrimination. He sees hundreds of local, individual acts of discrimination. Thomas would require every woman or black whom that employer had discriminated against to come to the government and prove his or her allegation. The burden is on the individual. The remedy is back pay and a job. "Anyone asking the government to do more is barking up the wrong tree," Thomas says.

Thomas has made it EEOC policy to shy away from class-action suits. He doesn't want to see blacks treated as numbers. So he favors aggressive attacks on employers only when they are proved to have discriminated against particular persons. "My view is that the most vulnerable unit in our society is the individual. And blacks, in my opinion being one of the most vulnerable groups, should fight like hell to preserve individual freedoms so people can't gang up on us. Blacks are the least favored group in this society. Suppose we did band together, group against group—which group do you think would win? We're breaking down everything, ten percent for the blacks, twenty-five percent for the women, two percent for the aged, everything broken out according to groups. Which group always winds up with the least? Which group always seems to get the hell kicked out of it? Blacks, and maybe American Indians.

"Playing the group game builds up racial conflict. That's what segregation was all about. But now blacks are out here raising all this Cain for group rights, and the ones who benefit the most, I think, would probably be white females, because they are the best-prepared group."

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