INTRODUCTION: TO LOOK LIKE AMERICA
It came as no surprise that when the Senate confirmation process was finally completed and Janet Reno was sworn in as attorney general the new Clinton cabinet contained more minorities and women than any previous cabinet in American history. In the third and final presidential debate of the 1992 campaign, Clinton had defined the criteria he intended to use in making his appointments. "I don't think we've got a person to waste," he declared. "I owe the American people a White House staff, a cabinet, and appointments that look like America but that meet high standards of excellence, and that's what I'll do."
In speaking of his future cabinet, candidate Clinton never mentioned affirmative action. But there was no mistaking the degree to which he was implicitly embracing affirmative action principles. He was not simply pledging that he would refuse to discriminatewould be color blind and gender blind in his choices. Rather he was saying that race and gender would be crucial to his selection process. By Inauguration Day 1993 it would not just be white men running his administration. The demographics of a Clinton cabinet might not precisely be the demographics of the nation/but taken as a whole, they would reflect America's diversity.
In their coverage of the final presidential debate, the media paid little attention to Clinton's remarks on how he would choose his cabinet. He had not talked about quotas or used the kinds of buzzwords that incite controversy. Indeed, in the campaign book Putting People First that Clinton and Al Gore issued during 1992, candidate Clinton seemed to go out of his way to distance -himself from affirmative action. "Oppose racial quotas" is the closest he and Gore come to mentioning affirmative action.
A month after the election when, as President-Elect, Clinton began announcing who would fill his cabinet, his choices quickly became controversial, however. The attacks came from the right and the left. Evan Kemp, the outgoing chairman of the Equal Employment Opportunity Commission, accused Clinton of retreating from his opposition to quotas and group preferences. And from women's political groups, criticism of the President-Elect's cabinet choices was so intense that at a December news conference he lashed back at them, calling them "bean counters" intent on "playing quota games."
The President was right to conclude that in trying to appoint a cabinet that looked like America he was never going to satisfy his critics. Few issues so divide America in the 1990s as affirmative action. Once primarily a black-white issue, affirmative action has expanded far beyond its original base and in the process become increasingly controversial and costly$17 to $20 billion annually for regulation and compliance alone, according to a 1993 Forbes study. Today it is not only African Americans who qualify for affirmative action but women and a broad spectrum of groups that includes Hispanics, Native Americans, Asian Americans, and Alaskan Natives.
Harvard law professor Randall Kennedy describes affirmative action as "policies that provide preferences based explicitly on membership in a designated group." Affirmative action is certainly that, but in practice it raises a series of additional issues, whether it is "soft" affirmative action that limits itself to special recruitment efforts or the kind of "hard" affirmative action that sets hiring goals. By insisting on the need for more than equality of opportunity for the victims of racism and discrimination, affirmative action calls into account both the historic wrongs that gave rise to it as well as our ideas of what constitutes a just society. In the 1990s it is not simply the damagepsychological, social, economicdone by past discrimination that affirmative action seeks to remedy. It also seeks to remedy practices that even if they do not intentionally discriminate have a disparate or adverse impactthat is, result in minorities or women being underrepresented.
There is hardly an area of our public life that affirmative action touches without bringing with it conflict. In the workplace, where federal affirmative action hiring programs alone cover thousands of companies, affirmative action can mean the difference between having a job or being unemployed.
In politics, where the courts and the Justice Department have regularly ruled that districts may be drawn so as to enhance minority representation and pave the way for the election of minority candidates, affirmative action can mean the difference between a safe seat or defeat.
In higher education, where a commitment to diversity has sanctioned the downplaying of grades and test scores for minority students, affirmative action can mean the difference between acceptance or rejection by an elite university.
The result is that affirmative action has become one of the most explosive issues in American life at a time when the federal government, saddled with a $4 trillion debt, is cutting back on social programs and the nation's population, as a result of massive immigration over the last twenty years, is increasingly diverse. Just how explosive an issue affirmative action can be was epitomized in 1990 by a television ad North Carolina's conservative Republican senator Jesse Helms used in his reelection campaign against Harvey Gantt, a black Democrat and the former mayor of Charlotte. The ad, which became known as the "White Hands" spot, showed a pair of white hands crumpling a job rejection letter while an announcer's voice intoned, "You needed that job. And you were the best qualified. But they had to give it to a minority because of a racial quota. Is that really fair?"
Helms was playing the race card in an uphill campaign, but the raw emotions that he was appealing to were easy to exploit. In a tight job market those raw emotions exist for countless workers who see themselves affected by affirmative action. One can, moreover, find similar reactions in other areas where affirmative action has played a key role. In the traditionally quiet world of higher education, affirmative action has provided the backdrop for unprecedented racial tensions. At the University of California at Berkeley those tensions have, a university report noted, split the campus into separate racial enclaves. At Yale University they resulted in a swastika and the words white power being painted on the African-American cultural center.
Unlike the debate over political correctness or multiculturalism, the debate over affirmative action is one in which a broad cross section of the population believes it has a personal stake in the outcome. For middle-class and working-class whites, who see themselves facing downward mobility in the 1990s, the great fear is that affirmative action will hasten their slide into poverty by closing off opportunities they would have had a generation earlier. For these whites, affirmative action, despite its emphasis on inclusion rather than exclusion, often seems tantamount to reverse discrimination. Women and minorities, especially minorities from the inner city, worry, on the other hand, that without affirmative action their chances for improving their situation will be lost. They fear that if affirmative action law isn't strictly enforced the nation will quickly forget that real equality of opportunity means making up for the damage done by past discrimination.
Our current battles over affirmative action did not suddenly arise with the hard times brought about by the 1980s. The roots of our affirmative action crisis lie in the 1960s, when affirmative action was still an uncontroversial term.
The link between affirmative action and civil rights was first made by John Kennedy in 1961, just months after taking office. On March 6 Kennedy signed Executive Order 10925, establishing the President's Commission on Equal Employment Opportunity and spelling out the obligations of contractors doing business with the government. "The contractor will take affirmative action to ensure that applicants are employed, and employees are treated during their employment, without regard to their race, creed, color, or national origin," Executive Order 10925 declared. By comparison with Franklin Roosevelt's tepid Executive Order 8802 of 1941, banning discrimination in war industries and the armed services, or Dwight Eisenhower's executive orders on federal contract compliance, Kennedy's declaration was clearly a step forward.
But nothing in Kennedy's 4,500-word decree linked affirmative action (he used the phrase only once) to anything more than the traditional goal of nondiscrimination. The executive order came because Kennedy did not believe he had the power to get civil rights legislation through Congress. Those the order was intended to impress with a new White House attitude on civil rights were Southern politicians from states where segregation still prevailed.
Two years later, when Kennedy proposed the legislation that finally became the Civil Rights Act of 1964, his target was still the South, and the meaning of affirmative action as spelled out in Tide VII of his bill was the same as in Executive Order 10925. Kennedy and the leading liberals of the 1960s assumed that by banning discrimination government could create a level playing field on which equal opportunity was the norm. It was an assumption borrowed from baseball, where Jackie Robinson and other black players had eventually thrived once racial barriers were removed, and from Southern school desegregation cases, where success arose from dismantling dual educational systems.
The language of the Civil Rights Act of 1964 makes clear its traditional interpretation of affirmative action. Tide VII not only prohibits an employer from discriminating because of an "individual's race, color, religion, sex, or national origin," it specifically declares that nothing in the act is designed "to grant preferential treatment to any group because of race, color, religion, sex, or national origin." The cautious language of the act is deliberate. In order to get it passed over a Southern filibuster that consumed a record eighty-two working days, its Senate sponsors had to promise that the bill would not legalize preferences.
"The title does not provide that any preferential treatment shall be given to Negroes or to any group or persons," Senator Hubert Humphrey, the Civil Rights Act's chief sponsor, declared during the Senate debate. The bill, he went on to say, "would prohibit preferential treatment for any particular group." In an Interpretative Memorandum of Tide VII, published in the Congressional Quarterly in April 1964, Senators Joseph Clark and Clifford Case, the bill's floor managers, were equally emphatic in denying any "hidden meanings" in the act's most controversial section. "There is no requirement in Tide VII that an employer maintain a racial balance in his work force," they argued. "On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of Title VII, because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race."
It was the last time affirmative action would have such a clear and circumscribed meaning. A year later the John-son administration began to redefine affirmative action. Like Kennedy before him, Johnson used executive orders in his case Executive Orders 11246 in 1965 and 11375 in 1967to implement affirmative action policy. But the key Johnson declaration on affirmative action came in a speech, "To Fulfill These Rights," delivered at the Howard University commencement in June 1965.
Knowing that the Voting Rights Act of 1965 would soon become law, Johnson began his speech by celebrating the degree to which racial barriers were being knocked down. Quickly, however, the President changed his tone. "But freedom is not enough," he told his Howard audience. "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him to the starting line of a race and then say, 'You are free to compete with all others' and still justly believe you have been completely fair." Johnson's figure of speech combined sports competition and America's slave past, but what distinguished it from previous playing-field analogies on civil rights was that it held that equalizing the rules of competition was insufficient. Special help was also needed. "Equality as a result" and "not just legal equity," the President insisted, had to be provided for those previously excluded from competing on fair terms.
It would be a while before women (feminist historian Alice Kessler-Harris insists that serious affirmative action on their behalf did not begin until the early 1970s) and non-black minorities drew the kind of concern that Johnson expressed in his Howard University speech, but the President had, nonetheless, reshaped the affirmative action debate. In addition to the Great Society programs of the 1960s, what followed was a crucial change in the definition of affirmative action. As Edward Sylvester, Jr., the first director of the Office of Federal Contract Compliance, later observed in Senate hearings on equal employment opportunity, "simple nondiscrimination as a passive activity" no longer met the requirements of the federal government after 1965. By the time the Johnson administration ended, government contractors with fifty or more employees and $50,000 or more in government business were expected to come up with affirmative action hiring plans that resulted in minority employees being added to their work force in order to win Labor Department approval of their contracts.
To bring about this transformation, the Department of Labor, which under Executive Order 11246 now bore primary responsibility for enforcing affirmative action, began to change its methods of operation dramatically. In 1966, reversing a policy that under pressure from civil rights groups had been implemented by Dwight Eisenhower in 1955 and John Kennedy in 1962, Labor started keeping personnel records by race and using them to evaluate hiring practices. At the same time the Labor Department's newly created Office of Federal Contract Compliance (OFCC) began a pre-award program for the construction industry.
Under Tide VII of the 1964 Civil Rights Act judicial relief in employment could not be provided without a finding of unlawful discrimination. The pre-award program avoided the need for such a finding by taking advantage of the government's economic leverage. With the pre-award program contractors were required to show "bid responsiveness"that is, demonstrate that they were actually prepared to meet affirmative action obligations. Without such a demonstration no contract would be awarded. With it low bidders received quick approval.
Two years later in 1968, the Office of Federal Contract Compliance tightened its affirmative action requirements further. Contractors doing government work were now required to present a "written affirmative action compliance program" plus "an evaluation of opportunities for the utilization of minority group personnel." The new regulations declared, "The contractor's program shall provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of minority groups, including, when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity." What exactly constituted a satisfactory goal or timetable remained unspecified, but a comer had been turned in the legal evolution of affirmative action.
When the Johnson administration ended and the Nixon administration took office in 1969, support for affirmative action still rested on shaky ground, however. Nixon had made his opposition to the liberalism of Johnson's Great Society programs part of his campaign, and his administration was in a position to halt, if not reverse, the new version of affirmative action that the Johnson Labor Department had brought about. Opposition to the Johnson administration's view of affirmative action came not only from such traditional Democratic party supporters as the nation's then powerful labor unions but from key Republican and Democratic senators.
The Nixon administration chose, however, not to alter the course affirmative action had begun to take in the Johnson years. It sought instead to make sure that the urban unrest of the late 1960s, exacerbated in no small measure by joblessness among young blacks, did not become one of its problems. The change from a Johnson Labor Department headed by liberal Willard Wirtz, to one headed by George Shultz, the former dean of the University of Chicago Business Schoolwho years later would become secretary of state under Ronald Reagangave new momentum to affirmative action.
When the Johnson administration left office, it had been struggling to put in place its Philadelphia Plan, an affirmative action program designed to force Philadelphia's highly segregated construction companies to hire more minority workers. The plan, originally conceived during the tense period following the Detroit riots of 1967, had drawn fierce opposition, not only from the construction industry and its unions, but from Controller General Elmer Staats, who insisted it was illegal. By the time the Nixon administration took office, the Philadelphia Plan appeared to be dead. But rather than let the plan be buried under the weight of the political and legal opposition it had aroused, George Shultz revived it in 1969.
Shultz's Philadelphia Plan was, moreover, no watered-down version of its predecessor. Shultz's plan made tough demands on the Philadelphia construction industry, calling for minority hiring in terms of percentages that gave contractors a specific target range to aim for. The percentages were not, as critics charged, rigid quotas, but they were an indication of the no-nonsense route the Nixon administration was prepared to follow in pursuing affirmative action.
A year later the Nixon administration made clear that its Philadelphia Plan was not just a symbolic gesture, designed to score easy civil rights points against an industry notorious for its lily-white work force. In February 1970 the Labor Department issued a new set of affirmative action plans. Order No. 4, that included all government contractors with fifty or more employees and at least $50,000 in government business. Order No. 4 redefined affirmative action in such a way that at the federal level it could only be talked about in terms of results that led to a proportional representation of minorities in the work force.
Order No. 4's definition of affirmative action as "a set of specific and result-oriented procedures" made clear how far behind it had left the old notion of discriminatory intent. Even more important. Order No. 4 redefined the concept of "underutilization," which had been terribly vague in the Johnson administration's 1968 affirmative action guidelines. Underutilization now meant "having fewer minorities in a particular job class than would reasonably be expected by their availability." The order required contractors to take into consideration "the percentage of the minority work force as compared with the total work force in the immediate labor areas," and on the basis of that ratio design "specific goals and timetables" to correct any hiring problems. The contractor then had 120 days to present the OFCC with an affirmative action plan or else cease doing business with the government.
The question now became whether the new affirmative action could withstand scrutiny in the courts. In March 1970 a federal district judge in Philadelphia in the case of Contractors Association of Eastern Pennsylvania v. Secretary of Labor granted the Justice Department's motion to dismiss a suit that declared the Philadelphia Plan illegal. But the big breakthrough in affirmative action rulings came in March 1971 in an 8-to-O Supreme Court decision in the case of Griggs v. Duke Power Company. In Griggs the black petitioners argued that their rights under Title VII had been violated because in order to get hired or promoted by Duke Power they needed either a high school diploma or a passing score on a standardized intelligence test. In a ruling that would shape affirmative action thinking for the next two decades, the Court agreed with the petitioners' claims.
Duke Power's requirements, the Court declared, could not be shown to have "a manifest relationship to the employment in question." But they could be shown to act as "built-in headwinds" against minorities, and that was enough to make them illegal. "The [1964 Civil Rights] Act proscribes not only overt discrimination but also processes that are fair in form, but discriminatory in operation," the Court declared. "Congress directed the thrust of the Act to the consequences of employment practices, not simply their motivation." Nowhere in the Court's opinion do the words affirmative action appear, but in its focus on the disparate impact of Duke Power's job requirements, there is no mistaking the parallel between the Court's emphasis on "consequences" and Order No. 4's emphasis on "result-oriented procedures."
The way was now open for affirmative action to expand still further, and in December 1971, when the Labor Department made permanent a Revised Order No. 4, it seemed to be reflecting the changing times. Revised Order No. 4 specifically included women in the "affected class" it was designed to protect.
Within academic circles as well as within the federal government, the new affirmative action was not without its critics. In a book provocatively entitled Affirmative Discrimination, Harvard sociologist Nathan Glazer decried the shift that in his judgment had changed the focus of civil rights from equality of opportunity to racial statistical parity, and after leaving office, Laurence Silberman, Nixon undersecretary of labor from 1970 to 1973, observed in a Wall Street Journal op ed, "Our use of numerical standards in pursuit of equal opportunity has ineluctably led to the very quotas guaranteeing equal results that we initially wished to avoid."
During the Nixon years such criticism was not, however, voiced with enough power or frequency to deter the evolution of affirmative action. The Nixon administration not only went on to strengthen affirmative action requirements, instituting compliance reviews in 1974, it also did not hesitate to back them up with legal muscle. In the wake of the Griggs decision, the Labor Department took on Bethlehem Steel, winning a major settlement from it for a seniority system that discriminated against black workers. Then Labor, along with an Equal Employment Opportunity Commission (EEOC) strengthened by changes Congress made in its structure in 1972, took on the nation's largest private employer, AT & T. A consent decree was won that in 1973 awarded $15 million in back pay to 13,000 women and 2,000 minority men and established new affirmative action goals in hiring and promotion. Universities also did not escape affirmative action scrutiny during the Nixon years. The office of Civil Rights, under the direction of Nixon appointee J. Stanley Pottinger, made Columbia University submit three different affirmative action plans before finally restoring $13 million in funding that it had suspended on the basis of its disapproval of Columbia's hiring policies with regard to women and minorities.
Affirmative action had shown that it could thrive under both Democrats and Republicans, and when in 1977 Jimmy Carter brought the Democrats back into power, the only question was whether affirmative action would continue to expand as dramatically as it had from the late 1960s to the middle 1970s. The answer came in September 1978 when the Carter administration introduced the Uniform Guidelines on Employee Selection Procedures. As tight as it had been, Revised Order No. 4 had still left a key question unsettled. At what point does an affirmative action plan succeed in "utilizing" the minority and female labor population it is expected to hire from? Revised Order No. 4 used the words reasonably to be expected to formulate the kind of result it was after, but that was still a vague concept. The 1978 Uniform Guidelines ended the vagueness.
Adverse impact and the four-fifths rule now became the cornerstones of affirmative action policy at the federal level. The Guidelines held that any employer practice that had an adverse impact on any race, sex, or ethnic group was illegal unless justified by business necessity. The Guidelines went on to assert that adverse impact was a job selection rate for any race, sex, or ethnic group that fell below four fifths that of the group with the highest selection rate. Employers now had a clear standard to fulfill when they signed a government contract. What is more, as a supplement to the Guidelines spelled out, employers could be "justifiably race, sex, or ethnic conscious" in undoing past practices that caused adverse impact.
By the close of the 1970s, it was not, however, only the federal government's view of affirmative action that was evolving. So, too, was the Supreme Court's. Between 1978 and 1980 the Court rendered three decisionsone in education and two in employmentthat changed the judicial and political climate surrounding affirmative action.
In its 1978 case, Regents of the University of California v. Bakke, a divided Court gave its first indication of the degree to which it was now prepared to allow racial preferences. Allan Bakke, a white medical school applicant, charged that he had been discriminated against by the University of California at Davis's admission program, which set aside sixteen places out of one hundred for disadvantaged students. Bakke, whose test scores were significantly higher than those of the admitted minority students, based his claim on the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. Davis in turn cross-claimed for a declaration that its special admissions program was lawful. Four of the justices agreed with Bakke. Four others disagreed and sided with Davis. The decisive fifth vote was cast by Justice Lewis Powell, who took a position that combined the thinking of both groups. Powell held that Bakke should be admitted to Davis because the sixteen places reserved for disadvantaged students constituted an impermissible quota, but he also went on to say that in the future there was no reason why race or ethnic background could not be treated by Davis as a "plus" in an applicant's file. Davis had, Powell reasoned, a "compelling state interest" in achieving diversity among its student body.
The Bakke decision was a delicate balancing act that left neither side satisfied. A year later, however, in the 1979 case of United Steelworkers of America v. Weber, the Court was not nearly so tentative in upholding preferences. By a 5-to-2 decision the Court gave its approval to an agreement between the Steelworkers' union and Kaiser Aluminum and Chemical Corporation to carry out a training program in which 50 percent of the trainees would be black until the percentage of black skilled workers at fifteen Kaiser plants approximated the percentage of blacks in the local labor force. The Court held that because the Kaiser plan was "voluntarily adopted by private parties to eliminate traditional patterns of racial segregation" it was not forbidden by Title VII of the Civil Rights Act. The plan, the Court's majority went on to say, would not unduly harm whites because it was "a temporary measure," designed only to eliminate "manifest racial imbalance."
The Court's view that Kaiser and the Steelworkers had acted voluntarily (both had notorious segregation records and had seemed on a collision course with the government) was a stretch, but it did signal the direction in which the justices were moving. A year later in the 1980 case of Fullilove -u. Klutznick, the Court sanctioned an affirmative action decision that allowed Congress to go farther than it ever had in establishing preferences. The case arose as a result of the minority business enterprise provisions of the Public Works Employment Act of 1977, which set aside 10 percent of $4 billion in funding for businesses owned by minority groups. The 10 percent set-aside seemed exactly the kind of provision the Court had ruled illegal in Bakke. But by a 6-to-3 margin the justices held that there was enough flexibility in the conditions surrounding the set-aside for it to avoid being a quota. Most important, the Court held that Congress, as an independent branch of the government, had far-reaching powers under the Constitution to employ racial or ethnic remedies for past discrimination. It did not have to offer precise findings for its actions. It could legislate on the basis of the broad historical record before it.
The Court's affirmative action decisions came with a price, however. Looking back on them a decade later from his perspective as a Yale law professor, current Solicitor General Drew Days III, who as assistant attorney general for civil rights in the Carter administration represented the government in Fullilove, observed in the Vale Law Journal that in the key affirmative action cases decided by the Supreme Court during the Carter years the grounds for affirmative action were never established as solidly as they should have been. In an article published in 1979 in the Washington University Law Quarterly, future Supreme Court Justice Antonin Scalia, at the time a University of Chicago law professor, was even more critical. "I have grave doubts about the wisdom of where we are going in affirmative action, and in equal protection generally," Scalia wrote. "It is increasingly difficult to pretend to one's students that the decisions of the Supreme Court are tied together by threads of logic and analysisas opposed to what seems to be the fact that the decisions of the justices on the Court are tied together by threads of social preference and predisposition. "
By the start of the 1980s what was disturbing to Days and Scaliathe one a judicial liberal, the other a conservativewas, however, even more disturbing to the public. The distinctions the Court had drawn between a goal and a quota, between a voluntary and required affirmative action plan, between what the Civil Rights Act of 1964 allowed and prohibited, often seemed like legal double-talk. The contrast with the 1950s, when the Court had been unified and clear in the principles it used to end school desegregation, was striking, and the contrast was made all the more vivid because those now on the defensive were people, such as future doctor Allan Bakke or Louisiana factory worker Brian Weber, who had played by the rules all their lives. By the close of the Carter administration, the seeds had been sown for the Reagan counterrevolution of the 1980s and an increasingly conservative Supreme Court that would dramatically narrow the scope of affirmative action.
In 1980 candidate Ronald Reagan promised to halt affirmative action on taking office. "We must not allow," Reagan declared, "the noble concept of equal opportunity to be distorted into federal guidelines or quotas which require race, ethnicity, or sexrather than ability and qualificationsto be the principal factor in hiring or education." On assuming the presidency, Reagan made sure that his key civil rights appointees shared his opposition to affirmative action.
To head the Civil Rights Division of the Justice Department, Reagan appointed William Bradford Reynolds, a corporate lawyer, who in a law review article, "The Reagan Administration and Civil Rights," summed up his thinking on affirmative action by declaring, "I regard government tolerance of favoring or disfavoring individuals because of their skin color, sex, religious affiliation, or ethnicity to be fundamentally at odds with the country's civil rights policies." As chairman of the Civil Rights Commission, Reagan chose Clarence Pendleton, Jr., a highly vocal opponent of "quotas, proportional representation, or the setting aside of government contracts for minority businesses," and to run the Equal Employment Opportunity Commission, Reagan selected future Supreme Court Justice Clarence Thomas, a conservative who did not hesitate to describe himself as "unalterably opposed to programs that force or even cajole people to hire a certain percentage of minorities."
Reagan's anti-affirmative action appointments reflected his determination to slow the course of civil rights as much as possible. During the 1960s Reagan had opposed the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Open Housing Act of 1968, and in the 1980s he was willing to take similar stands. One year after taking office, he reversed an eleven-year-old federal policy of denying tax-exempt status to schools and nonprofit institutions that practice racial discrimination. The following year he fired three Democratic members of the Civil Rights Commission, charging that they favored racial quotas, and in 1988 he vetoed the Civil Rights Restoration Act, designed to overturn a Supreme Court decision that said federal subsidies to colleges that practice discrimination could only be cut for the program in question, not the whole college.
By an 8-to-l vote the Supreme Court in the 1983 case of Bob Jones University v. United States declared the Reagan administration had violated the law in granting tax-exempt status to schools and nonprofit institutions that engage in discrimination, and in 1988 Congress overrode the President's veto to pass the Civil Rights Restoration Act. Most of the time, however, the Reagan administration was highly effective in its anti-affirmative action stands.
Between 1981 and 1983 the budgets of the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance were cut by 10 and 24 percent, their staffs by 12 and 34 percent, thus crippling the ability of both agencies to pursue affirmative action cases. "The federal policy of affirmative action effectively passed away with the inauguration of the Reagan administration," University of California Business School Professor Jonathan Leonard later concluded in a 1990 essay for the Journal of Economic Perspectives. "Affirmative action under the contract compliance program virtually ceased to exist in all but name after 1980."
By his personal stance and his administration's actions, Ronald Reagan was able to give new respectability to the opponents of affirmative action. They could now see themselves as centrists rather than reactionaries. Most important, before the decade was over, the Supreme Court, headed by a Reagan-appointed Chief Justice, William Rehnquist, and realigned with two conservative Reagan Justices, Antonin Scalia and Anthony Kennedy, was ready to abandon the expansive view of affirmative action that it had taken in the 1970s.
The Court's rightward shift on affirmative action was not immediately apparent. In the 1986 case Local 28 of the Sheet Metal Workers v. the Equal Employment Opportunity Commission, the Court did not hesitate to impose "race-conscious affirmative relief" that involved "long-standing or egregious discrimination." A year later, in the 1987 case Johnson v. Transportation Agency of Santa Clara, the Court approved a voluntary affirmative action plan that benefited women by making gender a plus in hiring decisions, and three years later in the 1990 case Metro Broadcasting v. Federal Communications Commission, the Court approved a Congressionally mandated affirmative action plan designed to correct "under-representation of minorities in the media."
But during the period it was making these decisions, the Court was also showing signs of its desire to limit affirmative action. In the 1984 case Fire fighters Local Union No. 1784 v. Stotts, the Court refused to apply affirmative action requirements to a layoff plan, arguing that the seniority system that determined the order of the layoffs was valid. And in 1986 in the case of Wygant v. Jackson Board of Education, the Court made a similar ruling, this time noting that affirmative action with regard to layoffs imposed an unfair burden on innocent parties.
The turning point for the Rehnquist Court came in the 1988 case Watson v. Fort Worth Bank and Trust. There the Court said it was appropriate for it to extend its authority to disparate-impact cases involving subjective job criteria. But at the same time it extended its reach, the Court dramatically undermined the power it had given workers in previous affirmative action rulings. Contradicting its 1971 Griggs v. Duke Power Company decision, which made employers ultimately responsible for showing the "business necessity" of any employment practice that had discriminatory impact, the Court declared in Watson that "the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice rests with the plaintiff at all times."
A year later the full implications of this dramatic shift in affirmative action law became apparent in the landmark case Wards Cove Packing Company v. Atonio. The case arose when minority workers charged that the company, which hired predominantly white workers for its skilled positions and nonwhites, Filipinos, and Alaska Natives for its unskilled positions, was guilty of disparate-impact violations. The Court ruled for the company, declaring that a plaintiff does not make out a case of disparate impact simply by showing that there is a racial imbalance in the work force. "As a general matter," the Court held, "a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. Such a showing is an integral part of the plaintiff's prima facie case in a disparate-impact suit under Title VII." Disparate impact, as it had been understood for eighteen years, was now over. And gone, too, were the chances for most plaintiffsunless they could afford a detailed study of a company's specific employment practicesto win affirmative action suits.
Wards Cove v. Atonio did not, however, stand alone in 1989. It was part of an overall rollback. In City of Richmond v. J. A. Croson the Court held illegal a Richmond affirmative action plan, modeled on the one the Court had approved in Fullilove v. Klutznick. The Court ruled that city governments could not be granted the same judicial leeway as Congress. In Martin v. Wilks the Court said white firefighters could challenge an affirmative action consent decree to which they had not been a party, despite the lapse in time their suit involved. But in Lorance v. AT & T Technologies the Court restricted the time in which a group of women employees could file a bias suit, and in Patterson v. McLean Credit Union, the Court ruled that the Civil Rights Act of 1866 applied to racial discrimination in hiring but not to harassment and other forms of racial discrimination on the job.
A year after his departure from the White House, the Court had given Ronald Reagan the victory over affirmative action that he had been seeking since 1980. Twenty-five years after the Civil Rights Act of 1964, it had also brought the civil rights movement to a new crossroads. As the 1990s began, both friends and foes of affirmative action knew that the only way to blunt the impact of the Court's 1989 decisions was with the kind of civil rights legislation that had not been passed since the 1960s.
Civil rights groups, no longer as influential as they had been in the 1960s, but still powerful, began pressuring Congress for overriding legislation soon after the Supreme Court decisions were in. By the spring of 1990, the result was a civil rights bill that not only sought to reverse the Court's new reading of disparate impact but undo its narrow interpretation of the Civil Rights Act of 1866 and allow minorities and women who were the victims of employment discrimination on the job to collect damages as well as back pay.
The Bush administration's initial response to the proposed Civil Rights Act of 1990 was hostile, and in an April 3 letter to Senator Kennedy, the bill's chief sponsor, Attorney General Richard Thomburgh spelled out the President's objections. The administration rejected, Thorn-burgh wrote, the idea that Wards Cove was "a radical change in law." It wanted to keep "the burden of persuasion" with the plaintiff in disparate-impact cases, and it wanted an employer charged with practices that result in disparate impact only to have to show that the practices served legitimate employment goals rather than that they were essential to business. The administration was, Thomburgh conceded, willing to give victims of discrimination a longer period to file claims than the Court said they had, and it was also willing to see the protections of civil rights law extended to cover what occurred on the job as well as what occurred in seeking a job. But these, Thomburgh warned, were the only concessions the administration was prepared to make, and he closed his letter to Senator Kennedy by threatening an administration veto of the Civil Rights Act of 1990 if it passed Congress without revision.
A month later the administration softened its public opposition to the Kennedy-Hawkins civil rights bill. In middle May the President declared he had only "minimal" differences with the pending legislation and "would like to sign a civil rights bill." But a series of meetings with civil rights leaders produced little change in the White House position, and by early August, after the House of Representatives joined the Senate in passing the Civil Rights Act of 1990, the battle lines that continued for the rest of the year were drawn.
By fall the administration was on the offensive again, and on October 22, when the President finally vetoed the Civil Rights Act of 1990, he went out of his way to distinguish his political views from those of the bill's sponsors. The proposed legislation, the President announced in his veto message, "employs a maze of highly legalistic language to introduce the destructive force of quotas into our Nation's employment system." Employers, the President declared, "will be driven to adopt quotas in order to avoid liability," and the country will be pushed into "years perhaps decadesof uncertainty and expensive litigation."
Given the large majorities by which the Civil Rights Act of 1990 had been passed by both the House and the Senatethe latter fell only one vote short of overriding the President's vetothe President's tough words were a shock to many. But in the fall of 1990, it seemed as if he had accurately gauged the mood of the country. Jesse Hemis's ability to use his "White Hands" television commercial to achieve a come-from-behind victory in his bellwether North Carolina Senate race only added strength to the notion that at the grassroots level the political opposition to affirmative action was intense.
A year later, as liberals in the Democratic party, aided by a handful of Republicans, geared up for a second try at a civil rights bill, the obstacles before them appeared greater than before. The battle for public approval of affirmative action seemed to be swinging to the right rather than to the left. In the spring of 1991, the Department of Labor's then little-known practice of race normingranking minority test scores only with regard to the test scores of other minorities in the same groupbegan drawing heavy fire, and, inspired by a controversy at Georgetown Law School that revealed that the grades and Law School Admission Tests of blacks were significantly lower than those of whites, preferential admissions in higher education came in for new criticism. Worse still for those hoping to enact a civil rights legislation, a poll by the Leadership Conference on Civil Rights, designed to develop a strategy to win approval for the Civil Rights Act of 1991, showed that among the white electorate there was now a widespread belief that civil rights leaders were more interested in special preferences than equal opportunity.
It looked as if the President would have no trouble vetoing the Civil Rights Act of 1991 and that his strategy of describing it as a "quota bill" would work again. Then in the fall of 1991, events suddenly took an unexpected turn. On October 6 the President's plan to replace outgoing Supreme Court Justice Thurgood Marshall with conservative Clarence Thomas received a major setback when law professor Anita Hill testified that she had been sexually harassed by Thomas when she worked for him. By a narrow 52-to-48 Senate vote Thomas was finally confirmed on October 15, in no small measure because of the efforts of his chief sponsor, liberal Republican John Danforth. But the confirmation victory, which ended a 107-day debate, cost the President enormous political capital, and on October 20, when former grand wizard of the Ku Klux Klan David Duke, running as a Republican in the Louisiana gubernatorial primary, beat out the official Republican candidate to finish a close second, the President and his party were again put on the defensive with regard to civil rights.
By late November, when he faced the choice of signing or vetoing the Civil Rights Act of 1991 (favored by Senator John Danforth, among others), the President's options were limited to a degree they had not been in 1990 if he wanted to preserve his image as a conservative who wasn't a racist. On November 21 the President gave in, signing the legislation that until the eleventh hour he had consistently labeled a quota bill.
The Supreme Court's cluster of 1989 civil rights decisions was no longer the law. The new Civil Rights Act shifted the burden of proof in disparate-impact cases back to the employer and required a company with an employment practice that resulted in disparate impact to demonstrate that the practice was both "job related" and "consistent with business necessity." The Act also provided remedies for intentional discrimination and unlawful harassment in the workplace, allowing women and minorities who were the victims of intentional discrimination to collect up to $300,000 in compensatory damages.
The signing of the Civil Rights Act of 1991 would, however, provide no relief from the battles that led up to it. The bitterness surrounding the bill was epitomized by two op eds that appeared in The Washington Post the week before the bill became law. In the first op ed, "Civil Rights: We Won, They Capitulated," C. Boyden Gray, the White House Counsel, wrote that the new bill, despite its specific references to changing Wards Cave, was consistent with the disparate-impact ruling in that case. Gray then went on to say that, with the exception of some minor compromises, the Bush administration made no concessions to get the bill it wanted. Four days later in an op ed entitled, "How the Civil Rights Bill Was Really Passed," Vemon Jordan, past president of the National Urban League, and William Cole-man, Jr., chairman of the NAACP Legal Defense and Educational Fund and a former Republican secretary of transportation, responded with a history of the bill that branded Gray's claims "patently false." Not only did the new bill reverse Wards Cave in every major respect, they noted, it also amounted to the White House belatedly agreeing to the changes civil rights leaders had been seeking for the last two years.
At the White House signing ceremony the same rancor prevailed. Nothing was more apparent than President Bush's sense that he had signed the Civil Rights Act of 1991 because he had no choice. The day before the signing, the White House had circulated, then hastily withdrawn, a proposed presidential order ending the use of affirmative action and hiring guidelines for federal jobs. And in the signing statement he issued along with the bill, the President again took a hostile stance, describing the authoritative guide to the Civil Rights Act of 1991 as the analysis (a virtual duplicate of Boyden Gray's) that conservative Republican Senator Robert Dole had placed in the Congressional Record on October 30. The result was a Rose Garden ceremony in which civil rights leaders and sponsors of the Civil Rights Act kept their distance from the President and his staff.
Today the differences that could not be smoothed over at the White House signing ceremony for the Civil Rights Act of 1991 are still with us. In making sure that his initial cabinetwith three women, four African Americans, and two Hispanicswas diverse. President Clinton was signaling the country that on matters of race and gender he was going to be very different from his predecessors. But the president's cabinet appointments, as the Lani Guinier controversy of June 1993 showed, have not shielded him from racial criticism nor made affirmative action less divisive than it was in the 1980s.
Among those excluded from its benefits, affirmative action continues to be a backlash issue, fueling a politics of resentment. For the 95,000 companies employing the twenty-seven million workers that, according to the Labor Department, federal affirmative action programs cover, the Civil Rights Act of 1991 clarifies the law, but it does not lessen the massive paperwork affirmative action compliance requires if those companies are to retain the $184 billion in business they do with the government. Similar tensions hold true in higher education, whether the students are the thousands trying to find their way through the racially proportioned admissions procedures of a large state university like Berkeley or the elite handful trying to make Harvard Law Review, which since 1981 has reserved slots for groups "historically underrepresented on the review." Even those who vote on affirmative action law cannot escape its consequences, as nine-term liberal New York Congressman Stephen Solarz discovered in 1992 when his heavily Jewish district was eliminated and he lost the Democratic primary election running in a new, predominantly Hispanic district, created in order to comply with the affirmative action goals of the 1982 amendments to the Voting Rights Act.
Most disturbing, three decades after the first affirmative action programs, we lack basic agreement on the justification for them. The contrast with the desegregation battles of the 1950s and 1960s is striking. When in its 1954 Brown decision the Supreme Court said that the concept of "separate but equal" as articulated in the 1896 Plessy v. Ferguson decision had no place in American law anymore, it was possible, despite the bitterness the ruling produced, to begin moving to a new consensus about racial justice. A decade later, introducing the legislation that became the Civil Rights Act of 1964, John Kennedy could count on a sympathetic response when in a national television address he asked, "If an American because his skin is dark cannot eat in a restaurant, cannot send his children to the best public school available, cannot vote for the elected officials who represent him, then who among us would be content to have the color of his skin changed and stand in his place?"
By the early 1960s it was possible to be both for ending discrimination and for maintaining traditional values. Support for civil rights laws that promised a level playing field for all rested on belief in a society in which people were judged by their deeds, and the passage of such laws seemed to justify the optimism Martin Luther King, Jr., voiced in his "I Have a Dream" speech at the 1963 March on Washington, when he envisioned an America in which his children would be judged by "the content of their character."
But affirmative action has produced no such optimism or consensus about the future; nor have its demands lessened with time. In the South of the 1960s eliminating a whites-only drinking fountain or desegregating a dual school system provided a clear remedy for a wrong. Such action produced visible results and brought immediate relief to the victims or the children of the victims of discrimination. But increasingly affirmative action cases have resisted neat cause-and-effect solutions or a sense of being confined to a limited period of time. If the remedy involves a hiring program that has as its goal a racial proportionalism in the work force, it may take years before the plan is completed, and if the affirmative action involves a college seeking a diverse class by giving preferences based on race, the issue may be even more complex. The problemspoor preparation and low test scoresthat the college is trying to overcome usually originate in the secondary schools from which the college draws its student body, and those hurt by the college's affirmative action policies are typically students too young to bear responsibility for the racial injustices of the past. The result in the 1990s is an affirmative action debate in which all sides can point to the burdens imposed on them and simultaneously claim the moral high ground.
The advocates of affirmative action admit that its costs can be high in terms of the resentments it causes among those who are hurt by group preferences for which they don't qualify. But far worse, they argue, is a system that allows the inequities of the past to continue into the present. It is naive, they argue, to think that after centuries of racism America can just adopt color-blind standards and expect the vestiges of racism to disappear. As Justice Harry Blackmun observed in the Bakke case, "In order to get beyond racism, we must first take account of race. There is no other way."
Affirmative action, its defenders contend, is our only significant counterweight to the institutional racism that makes it natural for our largest corporations and elite universities to draw on the groups they have always turned to. Without affirmative action a company such as AT & T would not have made the kind of back-pay and hiring agreements it did in the 1970s. Nor would the number of new black officers entering the police force between 1970 and 1990 have been 41 percent of the total. Nor would there be 1.3 million blacks currently working in government service.
Color-blind social policy at this stage is too little, too late, affirmative action proponents insist. It puts too much reliance on the goodwill of institutions in which women and minorities are still underrepresented at the highest levels. As Roderic Park, the vice-chancellor of Berkeley from 1980 to 1990, observed in defense of his university's affirmative action admissions policy, "Without including race we could not get either black or Chicano students above two percent of the freshman class. Race has to be a factor."
To call preferences, such as those mandated by Berkeley's admissions policy, reverse discrimination is, moreover, affirmative action advocates argue, to de-contextualize history. Traditional discrimination, whether based on race or gender, was invidious. It assumed the inferiority of those it excluded. By contrast the benign preferences of affirmative action carry with them no stigma. Their aim is inclusionary rather than exclusionary, and in a society in which preferenceswhether by the government for veterans or colleges for the children of alumsare commonplace, it makes no sense for affirmative action to be so resented. What affirmative action is doing, especially when its beneficiaries are inner-city blacks, is making up for government policies from slavery to Jim Crow laws to restrictive housing covenantsthat were intentionally racist.
There is, affirmative action proponents insist, no way America can finally be a just society without providing the remedies affirmative action requires. Affirmative action has become essential to our future. Its defenders argue that, in a society in which by the year 2000 two out of three new workers will be either a woman or a member of a minority group, the racial and gender balancing that affirmative action mandates is itself a merit. Affirmative action benefits all. We are better off as a nation when those who run our schools, our businesses, our police departments, reflect our population as a whole. A Balkanized America that ignores the need for such representative ness is a nation asking for social turmoil.
For the opponents of affirmative action, social turmoil is also a critical issue. But they see the turmoil resulting from, instead of being eased by, affirmative action. They do not deny the impact that past and present discrimination has had on American life. Their point is rather that under affirmative action the best and fairest remedy for discriminationequality of opportunityhas been replaced by a demand for equality of results.
Affirmative action, as authorized by the Civil Rights Act of 1964 was, affirmative action critics contend, inspired by conditions in the South and intended to provide relief to those who (individually or as a class) directly experienced discrimination. But what has happened since 1964, they argue, is that the remedial focus of affirmative action has disappeared. Affirmative action is now essentially prospective in nature and has been redefined in terms of disparate-impact theory, which holds that equity only exists in society when groups are proportionately represented in government and all key institutions.
What this distortion of equality of opportunity has meant, affirmative action opponents argue, is a new victims class. The price for affirmative action is not paid, like a tax that benefits welfare recipients, by the population as a whole. Instead the price for affirmative action falls disproportionately on innocent third parties, often themselves at the margins of society, who bear no responsibility for the vestiges of discrimination under attack. The white college student hurt by an affirmative action admissions policy is someone too young to be held responsible for educational racism. The blue-collar worker, especially if from a family that immigrated to America in the late nineteenth century, is someone whose ancestors themselves were the victims of discrimination and who has typically not benefited from racism in such a way as to justify losing out on a job simply because of not being a minority.
Equally important, affirmative action critics point out, affirmative action has brought benefits to those who have no right to claim them. The point of Lyndon Johnson's affirmative action metaphor about the runner who has been hobbled by chains is that once the runner is made equal with the other runners he is expected to compete on his own. But affirmative action makes no such distinction. The black high school student who has middle-class parents and who was educated in the suburbs is recruited by colleges seeking diversity as if he were disadvantaged. The Hispanic immigrant who recently arrived in Americaand cannot claim to have been hobbled by America's racial chainsis treated as if he were the victim of an historic wrong and owed a social debt.
Finally, affirmative action opponents argue, with its emphasis on group rights over individual rights, affirmative action resists closure. We are now caught up in a cycle of racial and gender balancing in which differences will always be a justification for compensatory preferences. For businesses this prospect means, as Justice Sandra Day O'Connor noted in Watson v. Fort Worth Bank & Trust, "If quotas and preferential treatment become the only cost-effective means of avoiding expensive litigation and potentially catastrophic liability, such measures will be widely adopted." But such cynicism is not, affirmative action critics point up, limited to those in power. The beneficiaries of affirmative action have a stake in clinging to their victim-hood. As long as they retain their victim status, they guarantee themselves a measure of public sympathy as well as preferences in every area of American life in which they are underrepresented.
What will it take to bring the affirmative action controversy to an end? An improved economy is the most obvious answer. So long as jobs are scarce, so long as there are limited scholarships and limited places for the college students who need them, affirmative action will remain a battleground. It is hardly surprising, as a recent New York Times-CBS poll found, that 71 percent of blacks, as compared to just 17 percent of whites, favor affirmative action. Affirmative action has become a bread-and-butter issue in which how people feel about it is inseparable from how they see themselves benefiting from it.
Three decades ago Bayard Rustin, the principal organizer of the 1963 March on Washington, saw a similar economic problem confronting the civil rights movement. In his 1965 essay "From Protest to Politics: The Future of the Civil Rights Movement," Rustin wrote that the next step for the civil rights movement and its allies had to be one in which they made their focus the creation of an expanded economy built around new jobs, housing, and schools. Without such a focus, Rustin argued, the civil rights movement would never draw the support it needed or make the transition from breaking down barriers of opportunity to achieving the fact of equality.
Today Rustin's thinking, his appeal for what amounts to a Third Reconstruction, has been voiced most persuasively by University of Chicago sociologist William Julius Wilson. In his essays, as well as in his book The Truly Disadvantaged, Wilson emphasizes the need for coalition politics and "race-neutral" social programs that feature full employment, job retraining, and health care. Like Rustin before him, Wilson is convinced that so long as racial politics is played as a zero-sum game in which one side's gain is the other side's loss, genuine progress, especially for those minorities who constitute the underclass, is doomed.
The question for the 1990s is whether our ongoing affirmative action debate will stand in the way of or bring us closer to the kind of expanded economy Rustin and Wilson have called for. The long-term answer to that question is unclear. The short-term one is not. It depends on those who have become opponents in the affirmative action debate realizing the anger they bring with them need not be a permanent weapon. It can also be a reason to listen to each other more compassionately, to view one another as future allies. For what lies behind that anger is not irrational. It is the shared perception that in the current American economy temporary exclusion is all too often the first step toward permanent exclusion.
The essays of Debating Affirmative Action reflect the fears as well as the search for common ground that have characterized the affirmative action controversy in America. The essays are arranged so that different views of affirmative actionfrom its origins to its political futuremay be set in opposition. Without such conflict a collection like this would lose its purpose. But no effort has been made to have the essays follow each other in a one-for-one, pro-con order. Affirmative action is too complicated a subject for such an arrangement, and so are the writers it has engaged. Like affirmative action itself, they resist easy definition.