AFFIRMING THE PRINCIPLE OF EQUALITY

AFFIRMING THE PRINCIPLE OF

EQUALITY

By Terry Eastland

DURING the second half of the 20th century, the United States has made a historic effort to overcome racial discrimination and secure equality for all its citizens. At the heart of the effort is a process known as "affirmative action." Under U.S. laws all employers in both the public and private sector are required to provide "equal employment opportunity," meaning that they cannot discriminate in their hiring practices on the basis of race or sex. Affirmative action takes employment one step further, requiring that employers take specific actions that work to the benefit of blacks and members of other racial and ethnic minority groups, as well as women.

Implemented in a variety of contexts with different results, affirmative action has stirred controversy when it has allocated benefits solely on the basis of race or gender, and most particularly when it has done so on a strictly numerical basis, setting specific quotas and timetables. Few would deny that affirmative action has given blacks access to areas that previously were closed to them, and has accelerated integration in the workplace. But it has done so at some social and psychic cost.

Whites – especially those who have been shunted aside in the quest for employment or promotion because of the workings of affirmative action – are often stung by what they see as a form of reverse discrimination. Blacks and other minority beneficiaries of affirmative action chafe at the assumption that any job advancements are the result of special treatment rather than hard work. Despite these drawbacks, most Americans would agree that some steps should be taken to assure that minorities have access to jobs and other opportunities on the same basis as all other citizens. The broad societal direction in favor of equality which affirmative action was originally designed to further will undoubtedly continue.

Affirmative action is historically related to the quest by blacks for equal treatment, a story that begins with the founding of the United States. In the Declaration of Independence, Americans committed themselves to the proposition that man is endowed with certain unalienable rights and that in the possession of these rights "all men are created equal." As a theoretical matter, that proposition included blacks as well as whites – all men. But the United States Constitution, written 11 years later to secure those basic rights, did not fully embrace blacks, who were held as slaves in many Southern states. Not until Americans had fought the Civil War was the United States Constitution changed so that slavery was outlawed and the equal protection of the law was accorded to all citizens.

Still, a new day of equality did not dawn in the latter part of the 19th century. Relevant constitutional amendments and new laws protecting the right of blacks were effectively nullified by Supreme Court decisions in the late 1800s. This contributed to the emergence in the South of a dual society. Blacks were segregated from whites, restricted in their freedom of movement and even denied the vote. They were “separate” – and obviously unequal.

In 1896 the Supreme Court sanctioned the South's dual society in a decision upholding a state law that required "black" and "white" railcars. Only one of the nine Supreme Court Justices – John Harlan – disagreed with the decision. In his famous dissent, Harlan said that the Constitution, as amended after the Civil War, "is colorblind, and neither knows nor tolerates classes among citizens." He continued: "In respect of civil rights all citizens are equal before the law ... The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

After the turn of the century, the situation for black Americans only worsened as segregation extended into more areas of American life. Yet at the same time several organizations devoted themselves to eradicating racial prejudice and securing equal treatment for all citizens. One of the most important was the Legal Defense and Educational Fund of the National Association for the Advancement of Colored People. The fund pressed the cause of equal rights for all, finally achieving a landmark victory in 1954 in one of the most famous cases in American constitutional law, Brown v. Board of Education. Segregated public school systems, the Court said, violated the equal protection clause of the Constitution.

The Brown ruling was interpreted broadly as saying that government may not make distinctions among its citizens on the basis of race. This point became the rallying cry of the growing civil rights movement, led by Martin Luther King, that was challenging the laws and customs of segregation in the United States.

Ultimately, because of their persistent and consistent appeals to the fundamental moral principle of nondiscrimination, the legal arguments combined with the social movement were able to effect profound change in American laws and attitudes. In 1957, 1960, 1964, and 1965 the Congress of the United States enacted civil rights laws that reflected this principle and strengthened the nation's commitment to equal rights for all.

It was in this context and at this time that the term "affirmative action" first came into general use. Consistent with the colorblind principles urged by civil rights leaders during the 1950s and early '60s, affirmative action was intended to ensure that the laws designed to end discrimination could actually do so. Affirmative action required an employer to take steps to end discriminatory personnel practices and henceforth to make all employment decisions on a race-neutral basis. These steps included dispensing with the quasi-nepotism of "old-boy" recruiting networks, eliminating any racial bias from employment tests, searching for qualified employees in black as well as white communities, and generally making employment and promotion opportunities available and accessible to black applicants. It also required that compensatory measures be taken on behalf of those whom an employer had discriminated against, by awarding jobs or promotions or back pay. Indeed, Title VII of the 1964 Civil Rights Act actually mentions reinstatement and back pay as forms of "affirmative action."

It was during the second half of the 1960s that affirmative action began to change meaning, as the issue of equality for black Americans became far more complicated than had originally been thought.

In 1965 President Lyndon B. Johnson gave a famous commencement speech at Howard University in Washington. Johnson said that it was not enough to give blacks freedom and "legal equity" and "equality as a right." Rather, he said, blacks must have "equality as a fact" and "equality as a result."

In these words Johnson was echoing the sentiments of those civil rights leaders who were worried that the erasure of the color line, accomplished over the previous decade, had not led to swift integration of blacks into the American mainstream. Some found explanation in the special history of American blacks. Whitney Young, head of the National Urban League, said that blacks had "serious disabilities resulting from historic handicaps." Another prominent civil rights advocate said that the problems of blacks are rooted in their "systematic exclusion from American society since slavery ended a century ago."

It was precisely because of this past that many black leaders thought race neutrality was inadequate. "Special efforts" were needed in order to achieve "equality as a result." In their view, such efforts had to include admitting and employing blacks on the basis of "numbers." In other words, for integration to occur, there had to be a certain number of blacks actually employed by a company or enrolled in a school. For many civil rights supporters in the middle and late '60s, only numerical results could measure equality.

Requiring as it did the active use of race, this concept of equality was freighted with irony, since the civil rights movement had aimed at a colorblind law and society, and the legal decisions and legislative acts of the 1950s and '60s enshrined race-neutral principles. Perhaps the most important of these, the Civil Rights Act of 1964, was very plainly a colorblind law. One of its parts specified, in fact, that no employer would be required to hire on the basis of race in order to correct some racial imbalance – i.e., an insufficient number of blacks – in the work force.

Nonetheless, because blacks did not appear to be moving ahead as rapidly as had been hoped, by the late 1960s color blindness had yielded to color consciousness, not only among most black leaders but also within the American government. The only way to get beyond race, the new argument went, was to take race into account. This reasoning produced a whole new understanding of affirmative action, a broad-based interpretation which was employed to help not only black Americans, but also members of certain other racial and ethnic minority groups – Hispanics, Asian-Americans, and American Indians – as well as women.

In 1965 President Johnson ordered "affirmative action" for most private employers who did business with the U.S. Government. The Labor Department regulations implementing the order said that an "acceptable affirmative action program must include an analysis of areas within which the contractor is deficient in the utilization of minority groups and women, and, further, goals and timetables to which the contractor's good faith efforts must be directed to correct the deficiencies and thus, to increase materially the utilization of minorities and women, at all levels and in all segments of his work force where deficiencies exist." It was no defense for an employer to say he had not discriminated or would not discriminate; if he had "deficiencies" – i.e., too few minorities or women working for him for whatever reason – he was expected to overcome them through hiring "goals." If a city had a work force that was 20 percent black, for example, an employer was required to hire this percentage of blacks. That was his "goal."

Numerical "goals" – also called "quotas" – became shorthand for affirmative action in the early 1970s. Governments on the federal, state, and local levels began to support this kind of affirmative action. In the private sector, American universities and professional schools adopted hiring goals for faculty members, and then went further to fashion admissions policies that gave minority applicants an extra boost. In the academy it was widely thought, as one prominent university chancellor put it, that "to treat our black students equally, we have to treat them differently."

Affirmative action did not go unchallenged. In 1972 a white Jewish student named Marco DeFunis sued the University of Washington Law School, charging that it had discriminated against him by admitting minority applicants with less distinguished qualifications. It was apparent that the issue would not go away and that at some point the Supreme Court would have to address whether racial preferences violated the Constitution.

That moment came four years later in Regents of the University of California v. Allan Bakke. The issue again was raised in the context of professional school admissions. Bakke, a white student, had been rejected by a University of California medical school. He sued, charging that he was the victim of a special admissions program that set aside 16 of the 100 places in each class for blacks, Asian-Americans, American Indians, and Hispanics. Bakke had excellent credentials – high grades, high achievement test scores. In fact, he had far better credentials than those actually admitted in the special process. Yet the medical school, which had no history of discrimination, had developed the special admissions program in order to help minority individuals overcome the past discrimination which it believed was evidenced in their low test scores.

The case was regarded as so important that it attracted a record number of legal briefs and an extraordinary amount of publicity. In its decision, the Court actually handed down two decisions, both by narrow 5-to-4 counts. On the one hand, the Court said the medical school must admit Allan Bakke. On the other, it said that it was not unlawful for a professional school to take race into account in its admissions practices, so long as it did not use rigid quotas, as the California school had done.

Since Bakke, the Court has had to decide a constant stream of affirmative action cases. Racial preferences have been upheld and struck down, and lay persons, not to mention many lawyers, have a hard time seeing how they cohere.

According to the Supreme Court, a state or local government may not justify an affirmative action goal simply on the basis of generalized past discrimination, and any numerical goal it does adopt must be one that does least damage to the rights of other parties. On the other hand, the Court has allowed affirmative action plans that aim for proportional representation of minorities and women in a company's work force.

What does seem certain is that the Supreme Court will continue to have affirmative action cases on its docket. If any prediction is worth making, it is that the Court will eventually take the law in the direction of race neutrality. This is the only direction consistent with the Constitution and statutory guarantees, and the only one likely to enjoy the support of a diverse people who are united not by race or religion or creed but by a devotion to freedom and equal rights for all.

In 1989 the Court handed down several controversial decisions affecting affirmative action. In January the Court held that broad patterns of societal discrimination were not enough to justify affirmative action programs imposed by local governments on private businesses. In June the Court handed down one decision making it harder to prove racial discrimination in hiring practices, and then another making it easier to challenge court imposed affirmative action plans. These rulings, all by narrow 5 to 4 margins, drew criticism in the civil rights community, emphatic evidence of the controversy that still surrounds this subject.

Affirmative action has not only proved legally controversial. Especially in recent years its morality has been challenged. Racial preferences often benefit individuals who may not themselves have been the victims of any actual discrimination. And questions have been raised about the unintended side effects on affirmative action's beneficiaries. Glenn Lowry, a Harvard University professor who is himself black, says that affirmative action can create uncertain perceptions about the qualifications of those minorities who benefit from it even as it undermines their ability "to confidently assert, if only to themselves, that they are as good as their achievements would seem to suggest."

In 1987 three black law students were about to win a spot on the school's law review in the traditional way – through head-to-head competition with all others – when an affirmative action plan was adopted. "Making" law review on the new basis, they weren't thrilled about it. As one of them told The Washington Post's William Raspberry, "Affirmative action was a way to dilute our personal victory. It took the victory out of our hands."

Racial preferences can generate and perpetuate notions of inferiority and demean genuine accomplishments. How can equality be achieved on this basis? The sad truth is that no one has yet designed an affirmative action program that eliminates the very serious costs, especially those borne by its intended beneficiaries.

Theodore Edwards was hired under an affirmative action program by Illinois Bell Telephone, where he is now a division manager. "I think affirmative action is necessary," he said, "but I don't think it should be administered so that we say we have to have X number of minorities regardless of qualifications." His solution is for employers to make stronger recruiting efforts to find qualified minorities, or to have quotas for entry-level jobs, and thereafter promotion purely on a merit basis.

Others would prefer to move away completely from the system of quotas and timetables, and to have government-sponsored integration plans concentrate on equality of education. Scriptwriter Julio Vera calls affirmative action "a handout," and now refuses to apply for minority writing programs. "Martin Luther King's dream was to erase color lines; affirmative action hasn't done that," he said. In his opinion, stressing education for minorities would allow them to compete more effectively in the job market and lessen their dependency on affirmative action programs.

Today there is no consensus on the economic impact of affirmative action. Studies do not yield a simple picture. Some scholars believe that government-required affirmative action has resulted merely in a reshuffling of black jobs in the labor force, with black employment increasing in the "covered" sector and declining in the "non-covered" sector. Affirmative action's impact tends to be felt more strongly by those at the level of the middle classes. The more desperate in the underclass are generally beyond the reach of affirmative action. Individuals hobbled by illiteracy, for example, have a fundamental problem in filling out the employment form that would put them in the hiring line where they have to be in order to benefit from affirmative action, however it is conceived. Affirmative action cannot eliminate the effects of drug abuse, family deterioration, teenage pregnancy, failure in school, and a host of other powerful, self-reinforcing obstacles.

Nonetheless, there is no denying that the anti-discrimination laws, if not affirmative action itself, have had a profound impact on American life. As economic columnist Robert J. Samuelson has pointed out in The Washington Post, many firms have changed their personnel policies. Recruitment has been broadened. Tests unrelated to qualifications have been scrapped. Promotions are less formal. Vacancies are posted publicly. Objective criteria are used in order to make formal evaluations. These changes work to the benefit of all Americans, regardless of race. Furthermore, there is no question that preventing and punishing racial discrimination – a central concern of the anti-discrimination laws – has been accepted by almost all Americans.

The kind and mix of public policies and private programs needed to make even further progress will require more discussion and debate among all of those with a stake in improving the prospects for Americans on the lower rungs of the socioeconomic ladder. But there is little doubt that such debate will transpire. Americans are pioneers of opportunity, and it is in the American character to take steps into new territory, even one as uncharted as this.

AFFIRMING THE PRINCIPLE OF

EQUALITY

LANGUAGE FOCUS:

• affirmative action 

(v. reverse discrimination)

• to shunt sb.
• to stir controversy
• to chafe at sth.
• to endow sb. with sth.
• unalienable rights
• to eradicate racial prejudice
• to secure equal treatment for all citizens
• rallying cry
• to enact a civil right law
• to dispense with sth.
• nepotism
• the “old boy” network
• colorblind law
• to yield to sth.
• shorthand (for sth.)
• docket (to have sth. on the docket)
• unintended side effects
• head-to-head competition
• to dilute
• to perpetuate notions of inferiority
• to demean genuine accomplishments
• an entry-level job
• to hobble (individuals hobbled by illiteracy)
• uncharted territory