Affirmative Action Revisited

 

Ronald SheehyRonald Sheehy

In the aftermath of the civil rights movement of the 1960s, many colleges and universities were under external pressure to admit African-Americans for the first time, or increase their numbers. Many African-Americans of my generation were the beneficiaries of race-conscious decisions, and our numbers, unarguably, contributed to the emergence of a Black professional class in the succeeding decades.

On April 22, 2014, voting 6 to 2, the Supreme Court in Shuette v. Coalition to Defend Affirmative Action upheld the voters in the state of Michigan who banned affirmative action in university admissions. Although this case dealt with university admissions, the voters also prohibited the state from considering race in public hiring and state contracts. Similar bans are in effect in seven other states.

The justices in the majority, while affirming the right of the citizens of Michigan to ban affirmative action, also stated that: “The case is not about the constitutionality or the merits of race-conscious admissions policies in higher education. Here the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences.”

Justice Anthony Kennedy in his concurring opinion with the majority summed it up this way: “The case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, addressed this issue directly in the opening lines of her passionate dissent: “We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do.”

Justice Clarence Thomas, the sole African-American on the court, voting with the majority, has long held the opinion that affirmative action policies hurt more than they help the recipients of affirmative action. Not surprisingly, the majority of African-Americans differ with this view. Ironically, Justice Thomas’s seat on the court was due to race-conscious decisions by President George Herbert Walker Bush who nominated him, and the Senate that confirmed his appointment.

While the Supreme Court reaffirmed Justice Lewis F. Powell’s conclusion in California v. Bakke that diversity is a constitutionally permissible goal it, nevertheless, sent a powerful message to the country endorsing exclusion instead of inclusion.

Justice Sotomayor defended affirmative action on grounds that the policy is fair and just. Fair in that it provide opportunities for minorities, which would otherwise be denied, and just in that it addresses the effects of years of past and ongoing discrimination. She concedes that she also was the beneficiary of affirmative action.

In a more recent case, on July 16, 2014, a three judge panel of the United States Court of Appeals for the Fifth Circuit upheld the University of Texas’ plan to increase diversity. The Supreme Court asked the appeals court to review the plan, which allowed for the top 10 percent of high school students to be automatically admitted to UT Austin. Under the plan, approximately 80 percent of the student body is admitted, with the remaining admitted through a “holistic review.” While it appears that affirmative action in Texas has been given a reprieve, it is likely that this case will find its way back to the Supreme Court.

The Texas plan is designed to avoid the direct consideration of race, although race is a factor in some of its admission decisions. The Supreme Court held in Grutter v. Bollinger that “racial classifications are constitutional only if they are narrowly tailored to further a compelling governmental interest.” Legal scholars will debate the meaning of the phrase “narrowly tailored.” However, if race is the proverbial “elephant in the room,” it is difficult to see how it can be avoided. History does not make it so, and we cannot ignore our history.

Let us consider that history. While the American public is somewhat informed of the horrors of slavery and the debilitating effects of racial segregation, it is less well informed of governmental policies occurring during a more recent era that stifled the aspirations of African-Americans, and at the same time advantaged White Americans.

Ira Katznelson in his provocative book, When Affirmative Action Was White, explains how policy decisions dealing with welfare, work and war during the 1930s and 1940s helped White Americans, and excluded, or differentially treated, the vast majority of African-Americans.

Katznelson argues that while Franklin Roosevelt’s New Deal provided some benefits to African-Americans, the “Faustian” bargain that President Roosevelt had to cut with Southern politicians in order to pass the legislation undercut many of the policies which would have helped African-Americans.

According to Katznelson, “by not including the occupations in which African Americans worked, and by organizing racist patterns of administration, New Deal policies for Social Security, social welfare, and labor market programs restricted black prospects while providing positive economic reinforcement to the great majority of White citizens.”

Similarly, in the 1940s following World War II, the Servicemen’s Readjustment Act, better known as the GI Bill of Rights, was the most extensive government handout in the history of the country. Katznelson makes the point that, “with the help of the GI Bill, millions of white Americans bought homes, attended college, started business ventures, and found jobs commensurate with their skills. Through these opportunities, and by advancing the momentum toward suburban living, mass consumption and the creation of wealth and economic security, this legislation created middle-class America.”

In short, says Katznelson, while Black service men had some success with GI Bill programs, rampant discrimination and racism severely curtailed the impact of these programs on the Black community.

In a speech at the Howard University Commencement on June 4, 1965, President Lyndon B. Johnson endorsed affirmative action with the following logic: “Freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years has been hobbled by chains and liberate him, bring him up to the starting line of the race and then say, you are free to compete with all the others, and still justly believe that you have been completely fair.” President Johnson, unique among his White contemporaries, felt and articulated the plight of African-Americans.

There has been undeniable progress since the civil rights movement of the 1960s and 1970s, including the election of an African-American president. Paradoxically, the Great Recession and Republican opposition to President Obama’s agenda have robbed the Black community of the great promise of his election.

A recent report by the National Urban League, 2014 State of Black America, supports this contention, and highlights the disparities between Blacks and Whites in many areas, including incarceration rates, educational attainment and health care, but particularly striking are differences in employment and wealth. The report documents that “black households have just $6 in wealth for every $100 in wealth of white households.”

These disparities are due to many present social conditions in the Black community, but are traceable to the debilitating effects of 200 years of slavery and 100 years of Jim Crow and segregation. Rep. John Conyers, from Michigan, has repeatedly introduced legislation, H. R. 40, to study the effects of slavery and subsequent racial and economic discrimination, and recommend a course of action for reparations, but has failed to generate broad support. Ta-Nehisi Coates, writing in the May 21, 2014, issue of The Atlantic, “The Case for Reparations,” makes a compelling argument for a reconsideration of the need for some form of reparations.

It is predictable that the admission of Blacks to colleges and universities, employed in government and private sectors jobs, or awarded contracts, will fail to reach a significant number without affirmative action or race-sensitive policies. In fact, the numbers after years of slow progress will reverse to unacceptable lows as more states institute bans on affirmative action, or private companies, small and large, turn a blind eye toward diversity, in spite of the country’s population becoming more diverse.

The state of California banned affirmative action in 1996. As a result, the president and chancellors of the University of California informed the Supreme Court that, “the abandonment of race-conscious admission policies resulted in an immediate and precipitous decline in the rates at which underrepresented-minority students applied to, and enrolled at the university.” The elimination of race-sensitive admissions policies in California, according to Justice Sotomayor’s brief, has been especially harmful to Black students. She states, “In 2006 there were fewer than 100 black students in UCLA’s incoming class of roughly 5,000, the lowest number since at least 1973.”

Opponents of affirmative action see it as a social policy that discriminates against Whites. There is no evidence that Whites have been denied opportunity, or have been discriminated against, except in those few examples where a case has been made to litigate and eliminate affirmative action. In other words, the fear of widespread “reverse discrimination” is an unrealized fear. Racial reconciliation in this country will depend on good faith efforts to root out unfairness, not on law suits based on arguments which are blind to history and present day realities.

Unfortunately, the country is deeply divided on the issue of affirmative action. In the decade of the 1960s, the civil rights movement inspired the nation to confront the issue of racism and disenfranchisement. President Johnson provided the legislative leadership, and Dr. Martin Luther King Jr. articulated the moral and ethical positions that moved the country toward inclusiveness. We are again approaching this choice in our society, where we can continue the backward slide toward racial polarization and segregation, or we can embrace a future of diversity and equal opportunity for all.

Ronald J. Sheehy, a molecular biologist, professor, accreditation official and now retired university administrator, lives in St. Petersburg, Florida. He is the author of a memoir, Possibilities: A Search for Personal Liberation.