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October 01, 2009

Affirmative Action and the Black Experience in America

by Philip C. Aka

Affirmative action permits the use of race and other “minority” factors, such as gender and ethnic origins, in decisions relating to allocations of public benefits, such as government employment, admissions into public schools, and awarding of government contracts. Affirmative action programs play a critically important role in the black experience in America. They originated as techniques designed to promote equality for blacks and metamorphosed into programs of special preference, beginning from the third quarter of the twentieth century, when equal opportunity techniques alone proved inadequate to secure equality for blacks.

The use of these programs led to more black presence or representation in some national institutions, particularly those, like the military, with a long history of racial desegregation. In appreciation of these results, African Americans, anecdotally and in opinion polls, have maintained overwhelming and robust support for these programs. Conversely, whites substantially disfavor special preferences for blacks and other minorities, but today, in opinion polls, support equal opportunity for all.

Reflective of the black support for affirmative action, or coincidentally, black political appointees have played an instrumental role in designing and implementing these programs. These appointees include Hobart Taylor, a Detroit lawyer who, under President John F. Kennedy, coined the term “affirmative action.” Equally, and reflective of the divisive capacity of affirmative action, a number of African Americans oppose these programs, some of them unyieldingly. Prominent black opponents of these programs include the scholars Thomas Sowell and Shelby Steele; the activist Ward Connerly, who has helped sponsor initiatives to abolish these programs in California and other states; and Supreme Court Justice Clarence Thomas, whose opposition mirrors the divide over these policies within the high court. Black opponents of affirmative action complain that these policies stamp a “badge of inferiority” on beneficiaries, and that they reinforce stereotypes that blacks, particularly African American professionals, cannot compete without these helps, among other contentions.

For blacks, two phases may be pinpointed in the evolution of affirmative action, the first (1865 to 1965) marked by equal opportunity, and the second (1965 to the present) by preferential treatment designed to secure “equality of result.”

Phase one originated with the passage of the Freedmen’s Bureau Act of 1865 in the aftermath of the Civil War. Pursuant to this law, Congress established the Freedmen’s Bureau to facilitate the adjustment into U.S. society of newly freed blacks through various forms of assistance that included employment and educational benefits. Although Congress dissolved the Bureau in 1872, caving in to pressure from white politicians opposed to any appearance of special preferences for blacks, educational legacies of the Bureau, such as Howard University, have survived to this day. Other landmarks of this phase include Brown v. Board of Education , 347 U.S. 483, in 1954, with its proposition that separate educational facilities were “inherently unequal” and violated the Fourteenth Amendment’s equal protection clause; the Civil Rights Act of 1964, which outlawed racial segregation in schools, public places, and employment; and executive orders on affirmative action by presidents John F. Kennedy and Lyndon B. Johnson.

An event that signified the second phase, or the passage from equal opportunity to equal result marked by special preference, was President Johnson’s commencement address, delivered, significantly, at Howard University, where the president made his famous pitch for “equality as a result.” Johnson justified equal result on the ground that, although essential, legal equality alone had become inadequate to secure equality for blacks. He viewed ability as “the product of a hundred unseen forces” which shape the lives of individuals, sometimes, as for blacks, negatively. Johnson put teeth into his advocacy for equal results by unveiling numerous programs under his “Great Society” anti-poverty initiative that benefited not just blacks but women as well. The process began with the Civil Rights Act of 1964 which, although designed initially to benefit only blacks, was amended, prior to passage, to also protect women.

Although Johnson laid the intellectual foundation for the equal-result phase in the history of affirmative action in the U.S., the practice of preferential treatment for blacks and other minorities that marked this era actually occurred under his successors, beginning with President Richard Nixon. During this post-Johnson era, the list of beneficiaries went beyond blacks and women to include various ethno-racial groups such as Hispanics, Native Americans, and Asian Pacific Americans, among others. The entities adopting these programs also grew beyond the national government to encompass governments at the state and local levels. Many organizations in the private sector followed suit, needing to satisfy conditions for governmental grants, or voluntarily impelled by the business necessity of diversity. Outside the U.S., a number of countries, many of them multiracial or multiethnic societies like the U.S., adopted preferential programs.

Reflecting this trend, which continues to this day, some global human rights instruments permit the use of affirmative action as a temporary measure to eradicate systematic discrimination. These multilateral treaties include the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the U.S. ratified in 1994; and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which the U.S. signed in 1980 but to date has not ratified. One effect of the global spread of the affirmative action doctrine is that the legal history of the programs in the U.S. has come to embrace not just U.S. domestic laws but also global human rights treaties, particularly those like the ICERD.

However, the expansion of affirmative action initiatives within the United States crystallized opposition that various Republican administrations tapped into and magnified. These acts of opposition took various forms, including the labeling by white males of many affirmative action policies as “reverse discrimination” against them, and advocacies for a “color-blind” society. Other symptoms of opposition included the adoption in California, in 1996, and in Washington, in 1998, of initiatives that abolished affirmative action; and experimentation in states including Florida and Texas with so-called race-neutral options, in place of affirmative action programs, for admissions into their public schools.

This was the setting in which President Bill Clinton, in 1998, following extended review of the preferential programs of the national government, released his policy designed to mend rather than end these programs. The exercise was accompanied by his initiatives on racial dialogue. The occurrence was advisable given developments in affirmative action challenges that suggested that racism, rather than mere dislike for these programs, was probably at play. These challenges, beginning with Hopwood v. State of Texas, 78 F.3d 932, in 1996, in which the Fifth Circuit questioned the constitutionality of affirmative action, came from white women who were themselves recipients of special preferences and who had, as a group, benefited from these programs probably more than blacks.

Opposition to these programs persisted during the second Bush administration until the Supreme Court gave its decisions in two Michigan cases in 2003: Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger , 539 U.S. 244 (2003).

Supreme Court jurisprudence on affirmative action in the post- Brown period started in the employment field ( see Griggs et al. v. Duke Power , 401 U.S. 424 (1971) and its progeny) before spreading into the areas of education and government contracts beginning in 1978. Twenty-five years of Supreme Court jurisprudence before 2003 introduced many rules on the law of affirmative action. These rules included the principles that affirmative action was constitutional if no quota was involved, and that the government uses race among a number of factors (plus-factor) to promote diversity in higher education ( see Justice Powell’s opinion in Regents of the University of California v. Bakke , 438 U.S. 265 (1978)). Subsequently, the Court applied strict scrutiny, first to affirmative action programs developed by state and local governments ( City of Richmond v. J.A. Croson Co. , 488 U.S. 469 (1989)), and later even to programs designed by Congress that hitherto were exempted from this test ( Adarand Constructors v. Peña , 515 U.S. 200 (1995)).

Given conflicting rulings by various circuit courts on affirmative action before 1993, one of which, Hopwood, questioned the holding in Bakke , the law on the subject became so muddled as to require the Supreme Court’s clarification. That clarification came in the Michigan cases. In Grutter, which involved an affirmative action of the law school of the University of Michigan, a majority on the Court drew on Justice Powell’s opinion in Bakke to find the program under challenge narrowly tailored to promote a compelling government interest. Its ruling contrasted with the decision in the companion case, Gratz , involving the university’s undergraduate program. Because the program awarded bonus points that, for it, made race decisive, the Court ruled the preferential program to be an impermissible quota. Also in Grutter , the Court commented on supposedly race-neutral programs (in lieu of affirmative action) that states including Florida and Texas were experimenting with and chose not to endorse those initiatives.

Even though the concept of affirmative action encompasses remediation of past and continuing discrimination, overall, in a jurisprudence spanning over three decades from 1978, the only permissible theory the Court has approved for these programs is diversity. In the aftermath of Grutter , Michigan voters, in November of 2006, adopted an initiative that abolished affirmative action programs in the state. A similar proposition was approved in Nebraska but failed in Colorado. As a result of changes in the membership of the Supreme Court that followed the retirement of Justice Sandra Day O’Connor, there is less sympathy for affirmative action under the present Court now led by Chief Justice John Roberts, who replaced the late Chief Justice William Rehnquist. The lack of sympathy is reflected in two recent cases from Kentucky and Washington State involving voluntary integration plans, the first since Brown that did not involve universities: Meredith, Custodial Parent and Next Friend of McDonald v. Jefferson County Board of Education , No. 05-915 (2007); Parents Involved in Community Schools v. Seattle School District No. 1 , 551 U.S. 701 (2007). The Court struck down these plans because they used race as a factor to promote diversity. Most recently, the Supreme Court ruled, in Ricci v. DeStefano , 557 U.S. ___, 129 S.Ct. 2658 (2009), in favor of a group of white firefighters whom the Court said were discriminated against on the basis of race when the city of New Haven threw out a test for promotions that city officials feared might have discriminated against blacks.

Given the important role U.S. presidents have played in the black quest for equality in America, including in the design and implementation of affirmative action programs, the attitude of a sitting president toward these programs is crucial. During his presidential campaign, Barack Obama espoused a concept of affirmative action that will include economic circumstance as a factor in the design of preferential programs and therefore embrace poor white males. So it is reasonable to speculate that under him the national government will mend rather than end these programs and sponsor affirmative action policies that will include poor whites among the beneficiaries. Despite their enmeshment in controversy, preferential programs have managed to survive and even thrive under both Democratic and Republican administrations. So the question is whether Obama will come up with an approach that wins broader acceptance with Americans of all races.

Philip C. Aka

Philip C. Aka is a professor of political science at Chicago State University and an adjunct professor of law at the Indiana University School of Law at Indianapolis. He is putting together a proposal for a book on “The Law and Politics of Affirmative Action in America” that will draw on his numerous publications on this topic.