Volume 27, Number 3

Affirmative Action: A Proud Moment for America

Fred Schepartz

As I wrote in this space recently, it is very seldom that I have a proud-to-be-an-American moment. However, this summer I had one of those moments.

As part of my paralegal studies, this summer I took a class in employment law. I was reading the chapter about Affirmative Action, and I had to smile.

And yes, I felt proud to be an American.

Obviously, I know about Affirmative Action, but I was not all that well versed in the history. The notion of equal opportunity took root through various Executive Orders, starting in 1940 when FDR issued Executive Order 8587, which prohibited the denial of public employment based on race.

In 1955, following the groundbreaking Brown v. Board of Education of the previous year, Eisenhower issued Executive Order 10050 that stated, “It is the policy of the United States government that equal opportunity be afforded all qualified persons, consistent with law, for employment in the Federal government.”

In a continuing effort to put real teeth in Brown, JFK issued Executive Order 10925, calling for “positive measures for the elimination of any discrimination, direct or indirect, which now exist.”

Executive orders followed, both under Johnson and even Nixon that strengthened and broadened the notion of affirmative action.

This was true leadership. This was a strong, honest and sincere admission of a history of oppression, subjugation and discrimination with a plan to move in a positive direction forward. Past wrongs could not be eliminated overnight, but at least progress could be made, albeit slowly. Nonetheless, it was still progress.

Congress passed the Equal Opportunity Act of 1972, which was the first major amendment of Title VII of the Civil Rights Act of 1964. Title VII is the part of the Civil Rights Act that deals with issues of employment.

Among other aspects, the Equal Opportunity Act of 1972 stated that all employment decisions “shall be made free from any discrimination based on race, creed, color, religion, sex or national origin.”

In addition, the Act required Federal agencies to implement affirmative action plans to give priority in employment to qualified applicants who belong to the prescribed protected classes.

And before long, affirmative action filtered down to state and local governments and then the private sectors. Affirmative action plans were being drawn up all over the country, with a goal to right historic wrongs, albeit it in an incremental fashion.

The basic requirements of an affirmative action plan were as follows:

  1. The plan creates a balance in the workforce that would not have existed absent discrimination.

  2. The plan’s duration is limited to the achievement of its objective.

  3. Only qualified applicants will be hired.

  4. White candidates are not barred from being hired.

Again, as I said, at this point I was having a rare proud-to-be-an-American moment. Yes, I realize affirmative action is a relatively modest, incremental means to right previous wrongs, but it is certainly a step in the right direction, and there can be no doubt that it has made a difference in the lives of countless Americans.

But as I read the chapter in the Employment Law textbook, the smile dropped off my face.

It did not take long following the passage of Equal Opportunity Act of 1972 for the backlash to strike at the very heart of affirmative action.

Just a few years later, Allan Bakke sued the California Board of Regents, claiming that his denial of admission into the University of California-Davis Medical School was based on discrimination because he was white. Thus the term reverse discrimination was burned into the national consciousness.

In University of California Regents v. Bakke, the U.S. Supreme Court held that an affirmative action plan that includes quotas discriminates against white applicants and therefore violates the Equal Protection Clause of the 14th Amendment as well as the prohibition of race discrimination contained within the Civil Rights Act of 1964.

The ink was hardly dry on affirmative action plans across the country. The nation had barely taken a baby step forward when suddenly the U.S. Supreme Court took a major step backward.

Over the next four decades, numerous anti-affirmative action cases were filed. And the U.S. Supreme Court continued to narrow the scope of affirmative action.

Yes, diversity was found to be a compelling interest, but needed “strict scrutiny” and must be “sufficiently narrowly tailored.” The Court stated race can be a “plus factor,” but also said considering race as a factor is “inherently suspect.”

Following U.S. Supreme Court decisions in the ’90s and just after 2000, affirmative action appeared to be on life support. The upshot was that universities could use race, but only as part of a holistic process where it is one of many factors to be considered. Thus, the Court said race can be considered but only if it is not being overtly considered.

Frankly, these so-called reverse discrimination cases make me angry for a variety of reasons. First, there is the obvious fact that these cases are brought by white people who live under the largesse of white privilege. Okay, maybe they did not get into their first choice of college or graduate school, but let’s face the facts: the overwhelming majority of plaintiffs in these cases probably had plenty of other opportunities, certainly more than those who are supposed to benefit from affirmative action plans.

And, of course, they had the resources to pursue these cases that found their way to the U.S. Supreme Court.

Or they allowed themselves to be backed by rightwing money because in the minds of these plaintiffs their selfish ends justify the means. To be fair, these plaintiffs genuinely feel they have been wronged, but their sense of victimization is deeply rooted in a sense of entitlement that comes from their privilege.

Another disturbing notion of these cases is that all this talk of reverse discrimination reinforces the public misperception that ignores the fact that affirmative action is ONLY supposed to apply to qualified applicants. Therefore, this movement fans the racist and sexist flames where qualified women and minorities are dismissed as “affirmative action hires.”

And let us not give the U.S. Supreme Court a free pass on these decisions. Anyone who thinks these were rational decisions, free of bias, is living in a fantasy world. The Courts of Rehnquist and Roberts have repeatedly shown hostility toward women and minorities with numerous decisions dripping with racism and sexism that barely hide a white-male bias. If you don’t believe me, just consider the absurd decision in Ledbetter v. Goodyear, which led to the passage of the Fair Pay Act of 2009.

But I am hopeful. The U.S. Supreme Court is poised for change. Antonin Scalia is dead. (By the way, I noticed after he died that he bore a striking resemblance to Fred Flintstone.)

Scalia hid behind the so-called doctrine of “Originalism” to further the privilege of white males. He was the pied piper that led Thomas and Alito, but he is gone, and the strings are cut.

I am hopeful.

Earlier this summer, the Court finally ruled on Fisher v. University of Texas and held firm against the anti-affirmative action tide by upholding the University’s use of the “ten-percent” rule that states that students within the top ten percent of their high school graduating class will be guaranteed admission into the University of Texas. Thus the Court affirmed the fair, reasonable and progressive notion that if one is smart enough to graduate in the top ten percent of a high school class within the Texas public school system, one is qualified to attend the University of Texas.

(It should be noted that the Fisher v. University of Texas contains Alito’s screeching 50-page dissent.)

That’s something. That’s a big something.

Hopefully, Hillary Clinton and not Donald Trump will get to fill the Supreme Court vacancy. Hopefully, we can resume the incremental progress of affirmative action.

As I have stated previously, I firmly believe that the arc of history bends toward justice.

However, sometimes we take two steps forward and one step back. Sometimes we take one step forward and two steps back. But sometimes we take two steps forward and then another two steps forward.

We, as a society, are making progress, slowly but surely. I have to marvel at how much has changed in my lifetime. However, as we progress, the reactionary elements get more desperate and more bold. And then we see ourselves moving backwards when we should be moving forward.

It is easy to get discouraged, but we have to have faith in the long-game. With our vigilant efforts, we can push the arc of history toward justice.

But we have to push. And we have to keep pushing.