In 2003, after the Supreme Court, in Grutter v. Bollinger , 539 U.S. 306 (2003), limited race to one of many factors that could be considered in higher-education admissions, Justice Sandra Day O’Connor predicted that affirmative action, born with the Civil Rights Act of 1964, had at best twenty-five more years to live. Grutter at 343. She was too optimistic.
The Court’s 5–4 decision in Ricci v. DeStefano, 557 U.S. ____, 129 S.Ct. 2658 (2009)—concluding that the city of New Haven had violated the rights of white firefighters when it threw out a promotions test because no blacks scored high enough to win promotion—cut the last legal underpinnings from affirmative action. Without protection from reverse-discrimination lawsuits, virtually every affirmative action will now be forever tied up in a legal tangle that chokes the life out of it.
Race relations played an ever-present role in the life of the Supreme Court during the 2008–2009 term. The affirmative action ruling in the Ricci case came in the same term in which the Court ruled in two other sensitive racial disputes over enforcement provisions of the 1965 Voting Rights Act. In addition, the appointment of the first Latina woman, Sonia Sotomayor, brought attention to the fact that she is only the third woman and third racial minority to join the Court in its history.
In the first Voting Rights case, Bartlett v. Strickland , 556 U.S. ____, 129 S.Ct. 1231 (2009), the Supreme Court split 5–4 in ruling against extending Voting Rights Act protections to electoral districts that have less than 50 percent minority populations. This case will limit attempts by Democrats—who dominate the black and Hispanic vote—to seek special protections for minority voters in jurisdictions where a sizeable vote, say 30 percent, is in minority hands.
In the second and potentially more important case, Northwest Austin Municipal Utilities District No. One v. Holder , 557 U.S. ____, 129 S.Ct. 2504 (2009), the Court appeared to signal the beginning of the end for mid-twentieth century protections for black voters put in place under the Voting Rights Act. The justices ruled 8–1 on very narrow grounds that a Texas municipal water district can apply to be released from pre-clearance provisions of Section Five of the Voting Rights Act. Those provisions, which apply to sixteen states, mostly in the Old South, require advance approval for any changes to rules for voter registration and voting on the basis of a history of white officials using discriminatory tactics—poll taxes, literacy tests, and outright intimidation—to discourage minorities from voting.
The case came to the Court because the Voting Rights Act and its Section Five provisions gained renewal in 2006 based on 1960s-era data. (Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577.) Those statistics showed that minority voting power was being intentionally depressed to maintain a white, segregationist power structure in those states. At oral argument the Court seemed ready to rule that the Section Five provision was an unconstitutional violation of state sovereignty because it assumed the intent to discriminate without any actual evidence. But by limiting itself to the Northwest Austin Municipal Utility District No. 1 of Austin, Texas, which did not exist in the 1960s, the Supreme Court was able to win a near unanimous ruling while inviting future challenges to the entire pre-clearance provision. Only Justice Clarence Thomas dissented, on the grounds that Section Five now amounts to an unfair burden to any state unless there is proof of discrimination that requires federal remedy.
The most important race case of the term, however, was the June ruling that sounded the death knell for affirmative action.
It is a death that has come too early.
The nation’s latest unemployment numbers make the argument for public and private programs to ameliorate continued disparities between whites and minorities. African Americans have close to double the joblessness of whites, while the unemployment rate among Latinos is a third higher than that of whites. In a nation growing rapidly more racially diverse, these are destabilizing disparities in power and class. In leading professions, blacks and Hispanics comprise a mere 4 to 6 percent of lawyers, doctors, and engineers. These destabilizing disparities are exacerbated by differences in education and income and, more important, by the history of government-enforced segregation that long denied African Americans, a class once consigned to slavery, entry into schools and the business world.
So, why now?
More often than not, it is the American left that gets lost in absurd fantasies about race in America. They pretend there has been no progress in the past five decades, even when they see the rise of a black middle class and witness the election of a mixed-race president and the appointment of a female Hispanic judge to the Supreme Court.
But today, it is the right wing and its supporters on the high court who are lost in fantasy. They pretend that the nation is already so transformed by demographics that a colorblind America is a reality and that affirmative action is superfluous, so much so that white employees in a big-city fire department—an arena long dominated by Irish and Italian Americans—need some help from the Supreme Court to get a job promotion.
This is a stark reversal of the Supreme Court’s position in 1979 in United Steelworkers v. Weber , 443 U.S. 193 (1979). In that case the Court upheld a voluntary policy, negotiated between the company and the union, of one-black-for-one-white hiring. The Equal Employment Opportunity Commission then protected employers from lawsuits from whites if employers acted on an approved plan to reverse the history of excluding people of color from hiring or moving up to top jobs. That framework is blown apart by the Ricci decision. Justice Ruth Bader Ginsberg was on target in her dissent, 129 S.Ct. at 2689, in Ricci when she wrote that the ruling did untold damage to civil rights laws intended to go beyond words and actually rectify past wrongs.
But Justice Antonin Scalia exemplified the new thinking, writing in his concurring opinion, 129 S.Ct. at 2681, that a “war” is coming between individual rights in the Constitution and the Civil Rights Act’s protections against standards or hiring tests that have a specific effect on protected minorities. “The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them,” Scalia wrote. 129 S.Ct. at 2683.
Well, the war is over before it has begun. And Justice Scalia’s support for individual rights over social and political efforts to open doors to a previously excluded class—racial minorities—has won the war.
Employers, whether in government or in the private sector, now have every incentive to avoid affirmative action fights. Left in place is a status quo that favors the white majority, especially white males, who profited most from the exclusion of racial minorities for all but the most recent American history.
The only way to make sense of what seems so farcical by any historical analysis is to conclude that the Court is intently focused on the idealism of individual rights in a nation whose demographics are a potentially combustible mix. In a more racially and ethnically diverse America, every person (including whites) can be subjected to unfair racial judgments by employers. And there are so many more immigrants—and children of immigrants—that, with white birth rates declining, people of color already make up a third of the nation’s population.
And it makes sense, up to a point, to debate the ending of anachronistic remedies for racial discrimination that are more appropriate to mid-twentieth century America, in which nearly 90 percent of the population was white and rank racism kept blacks, Latinos, and Jews from advancing in the workplace.
When the Civil Rights Act passed in 1964, the intent of its employment provisions (Title VII) was to protect obvious victims—blacks, Hispanics, and Asians being injured by racial discrimination in hiring, promotion, and pay. When President Johnson first issued an executive order calling for federal contractors to use affirmative action to hire more minority workers, he did not include women; they were added to the president’s executive order two years later. The heart and soul of the original affirmative action effort by the federal government under Title VII was to help qualified minorities find their way through “old boys” networks, negative stereotypes, and demands for qualifications that had the effect of putting a “Whites Only” sign on the doors of employment.
That is just one aspect of the realities of racial unfairness that brought an all-white U.S. Senate, Dr. Martin Luther King Jr., and even Malcolm X together to support a Civil Rights Act aimed at ending discrimination. Presidents across political lines, beginning with Lyndon Johnson and Richard Nixon, embraced the idea.
It led Justice Thurgood Marshall and Justice William Brennan to argue that the Constitution’s equal rights protections had not stopped pernicious job discrimination and therefore should not be used to stop efforts to redress the damage done by outright racism. In 1989, in City of Richmond v. J.A. Croson Co. , 488 U.S. 469 (1989), the Supreme Court cut that back by ruling that affirmative action is a “highly suspect tool,” and added that any use of affirmative action had to be preceded by “strict scrutiny,” putting minorities in the position of having to prove past discrimination.
And now, with the Ricci case, the Supreme Court has reduced affirmative action to virtually nothing. Public-sector employers, such as elected officials in the city of New Haven—where 60 percent of the people are minorities but the leadership of the fire department remains heavily white—may still feel political pressure to bring more people of color into their workforce, and may explore tests that seek to produce more equitable racial outcomes for jobs and promotions.
But even then, any loser may sue. Corporations are unlikely to go even that far. Why bother to spend money or time to develop such tests when—absent a powerful lawsuit—they do not face any political pressure to diversify their workforce? As the executive director of the National Federation of Independent Business told the Wall Street Journal, the Ricci ruling was a “good decision for business,” because employers, according to one lawyer, get “very nervous” when test results favor any particular group of employees. Jess Bravin and Suzanna Sataline, “Ruling Upends Race’s Role in Hiring,” Wall Street Journal , June 30, 2009, p. A1. “Now employers have some assurance that they’re not going to be sued if it turns out that despite their best efforts, the process impacts one of the protected categories,” said Karen Harned, the Federation’s executive director.
After the Ricci ruling, President Obama said that any hiring or school admissions practices based solely on race are unconstitutional, and he condemned the use of quotas. In an interview with the Associated Press, the nation’s first black president stressed that the Supreme Court did not completely “close the door” on affirmative action, if properly structured and in certain circumstances, but conceded that the Court had indeed moved “the ball” away from such efforts. Obama also asserted that affirmative action “hasn’t been as potent a force for racial progress as advocates would claim,” and as consolation, offered that the best form of affirmative action is providing a good education for all Americans.
Essentially, Obama delivered a eulogy for affirmative action.
Of course, efforts to breathe some life into affirmative action may continue here or there. The presence of new blood on the high court, in the form of Justice Sonia Sotomayor and future possible additions to the liberal wing, may change some rulings. At her confirmation hearings, Sotomayor, a self-described product of affirmative action in school admissions, said “equality requires effort,” and recognition of race and history is necessary to insure equal rights in some cases.
She may be right, but for now she does not have the votes, and the tide of time and politics has moved the other way.
Republican senators on the Judiciary Committee made it clear that her talk of the superiority of being a wise Latina was threatening to them. First, they pointed out that they could not brag about the value of being a wise white man without being disqualified for making racially inflammatory comments. Also, the all-white senators wanted assurance that they would be treated as fairly as a minority judge would treat minorities in their court. The Sotomayor hearings might have been titled, “White Men Living in Fear of Minorities Discriminating Against Them.”
With white men openly fearing bias against them, the nation has reached the end of the bold national experiment that came to life forty-five years ago. The equal employment section of the Civil Rights Act is now over—even if discrimination is not.
It is time to think about how to deal with racial inequity without affirmative action.