Affirmative Action

In the combustive debate over affirmative action, fairness is the hottest issue of all. Most people agree that employers should hire and promote people fairly. Does affirmative action make this happen? Americans disagree sharply: a July 1995 Associated Press poll found that 39 percent think it does, but 48 percent said giving preference to women and minorities produces even greater unfairness. These numbers barely scratch the surface of the antagonisms in a debate now more than thirty years old. Proponents argue that the benefits of affirmative action policies are tangible, deserved, and necessary. Opponents reply that these benefits hide the real harm done by affirmative action: rewarding the wrong people, devaluing the idea of merit, and punishing white men. The two sides disagree on what should be done, yet there is no shortage of ideas. In the 1990s, a flurry of arguments have come from politicians, academics, civil rights leaders, and reformers that are aimed at preserving, modifying, or ending affirmative action.

History has drastically rewritten the terms of this debate. In the years of great advances in federal civil rights, Presidents JOHN F. KENNEDY and LYNDON B. JOHNSON could easily frame the issue as a purely moral one. Johnson put it this way in 1965:

Freedom is not enough…. You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying,"you are free to compete with all the others," and still justly believe you have been completely fair. Thus it is not enough to open the gates of opportunity.

Thirty years later, Senate majority leader BOB DOLE (RKan.) made this widely quoted attack: "The race-counting game has gone too far." Polls indicate that both Johnson and Dole spoke for a majority of citizens of their time. Johnson captured the essence of a nation willing to move beyond the legacy of JIM CROW LAWS. Dole summoned the resentment of white males who had seen the affirmative action net expand to hold not only minorities but also women and immigrants. But white men are hardly the only complainers: according to a March 1995 Washington Post-ABC News poll, 79 percent of middle-class white women oppose preferences for women.

For affirmative action's strongest supporters, explaining the new harshness in the policy's politics is a matter of going back to the beginning. They point out that affirmative action was never supposed to be painless. Making room for groups that have historically suffered discrimination means that the very group that did not suffer—white males—now has to do so. This can be characterized as the sins-of-the-fathers argument, illustrated in a 1995 briefing paper from the AMERICAN CIVIL LIBERTIES UNION (ACLU): "[W]hile it's true that white males in any given era may not all have been responsible for excluding people of color and women, all white males have benefited unjustly from that historical exclusion … [thus enjoying] privileged status and an unfair advantage." This position is supported by statistics: in 1995 white males held nearly 95 percent of senior management positions in major corporations, earned 25 to 45 percent more than women and minorities, and held well over 80 percent of the seats in Congress. On the other hand, from 1973 to 1993, black poverty increased from 31.4 to 33.1 percent. Without doubt, discrimination continues; from the perspective of supporters of affirmative action, the sins of the fathers are far from paid for.

Because equality still eludes the beneficiaries of affirmative action, supporters dismiss attacks on the policies as part of a backlash. Three decades of advances for affirmative action's beneficiaries have meant diminished dominance for white men, a group whose income has been falling in real terms since 1973. But, supporters say, the reason white men earn less today than their fathers did is not the fault of affirmative action. They point to long-term changes in the U.S. economy and job market as the real explanations for stagnating incomes, diminishing buying power, and decreasing job security. Yet affirmative action gets the blame."We are the ultimate scapegoat for whatever goes wrong," Mary Frances Berry, chairwoman of the U.S. COMMISSION ON CIVIL RIGHTS, told the Boston Globe in 1995. Dwindling support from middle-class white women also draws the ire of affirmative action's advocates. "In the 1970s and 80s, white women had no problem hitching up to the affirmative action banner of 'women and minorities'," journalist Derrick Z. Jackson wrote. "If they now want to rip down the banner, it will confirm the dirtiest little secret of all about affirmative action"—that white women supported it only to the extent that it benefited themselves.

Dismissing these explanations as excuses, critics of affirmative action denounce it as "reverse discrimination." They either reject outright the idea that historical wrongs can be redressed through contemporary means, or believe that the cost to those who must pay for such redress is too high. Conservative think tanks such as the Institute for Justice and the HERITAGE FOUNDATION regularly lead this prong of the attack. Clint Bolick, the Institute for Justice's vice president, told Congressional Quarterly, "If you add up the number of people who have encountered reverse discrimination in college admissions, scholarships, public school magnet programs, government contracts and jobs in the private and public sectors, you have a pretty sizable population." The charge strikes the strongest advocates of affirmative action as insupportable. According to the research of law professor Alfred Blumrosen, of Rutgers University, only a few dozen such cases reached the federal courts in the early 1990s, and in most, the plaintiff failed. Other advocates see the reverse discrimination argument as sour grapes; the ACLU goes so far as to call it a smoke screen "for retention of white male privilege."

Critics frequently argue that affirmative action does an injustice to the idea of merit. Organizations representing police officers and firefighters, such as the national Fraternal Order of Police, complain that qualifications and standards have fallen to accommodate affirmative action candidates. This criticism is popular not only with whites, who have long claimed that better qualified candidates lose out as a result of affirmative action, but also with two leading conservative African American critics. "What we've had to do for 25 years to pull off affirmative action," the author Shelby Steele said, "is demean the idea of merit." The economist Thomas Sowell advances much the same argument in his claim that the policy hurts African Americans. Like other conservatives, Sowell ties the rise of affirmative action in the 1970s to the development of the black economic underclass. Steele and Sowell have argued that affirmative action sets up its beneficiaries for failure, corrupting the value of achievement for blacks and reinforcing racist stereotypes for whites. Viewing affirmative action as antidemocratic, they conclude that individual qualities alone should determine who is hired or accepted into an academic program.

Advocates are highly suspicious of the merit argument. In the first place, they deny that creating opportunities ignores the value of personal merit. Voluntary affirmative action merely gives people who traditionally have been excluded a leg up, they assert; and when it is court ordered to redress a pattern of workplace discrimination, the question of merit misses the point. More crucially, supporters think the merit line is superficial. Political commentator Michael E. Kinsley quipped that critics "seem to imagine that everyone in America can be ranked with scientific precision, from No. 1 to No. 260,000,000, in terms of his or her qualification for any desirable career opportunity." He and other supporters consider the argument specious in a society in which merit is often the last reason for success and other variables that give advantages to certain groups are deemed perfectly natural—the children of the rich attend the best schools regardless of their abilities, for example, and military veterans receive preferences whether or not they have personally sacrificed anything for the nation. The United States was never a meritocracy, asserts Laura Murphy Lee, director of the ACLU's national legislative office: "Affirmative action didn't come along to taint a process that never existed."

Proposals for reforming affirmative action became increasingly popular in the mid-1990s. At one extreme, politicians have called for dumping it altogether. This idea has been urged in Congress chiefly by ultraconservative Republicans such as Senators Phil Gramm (R-Tex.) and JESSE HELMS(R-N.C.). Although no action has been taken on the congressional level, similar proposals in the states of California and Florida have gained ground. California reformers scored two victories in the mid-1990s: First, in 1995, regents of the University of California dropped gender- and race-based admissions, hiring, and contracting. Then, reformers succeeded in passing an anti-affirmative action REFERENDUM—the California Civil Rights Initiative, a measure that would outlaw gender- and race-based preferences in government programs—in 1996. A similar referendum passed in Washington State in 1998.

Less radical and perhaps more politically feasible, another proposal calls for preserving affirmative action while shifting its emphasis. The idea would abandon race and gender as yardsticks and match preferences solely with economic need. Conservatives again lead this campaign, but it draws some support even from moderates: President BILL CLINTON, declaring that his administration was against quotas and guaranteed results, ordered a review of federal employment policies in 1995 to ensure that they were being applied fairly. Critics of affirmative action believe that this kind of reform would ensure opportunity for disadvantaged people while ending what they see as egregious abuses, such as the awarding of contracts to rich minority-owned businesses. Traditional supporters agree that affirmative action benefits do not always help the people who most need them. But they believe that substantial gains should not be reversed, and that any need-based measurement should only augment—not replace—existing policies.

The journey of affirmative action from its heyday to the present reflects great changes in the United States. Between the administration of President Johnson and the Republican-controlled Congress elected in 1994 lies a thirty-year experience with GREAT SOCIETY initiatives that has left many citizens soured on the idea of government assistance. Radical changes in the nation's economy and workforce have surely not made the journey any easier. Bridging this gap seems unlikely, given the vastly different history of white males on the one hand, and women and people of color on the other. From these two poles of experience, two opposing ideas of necessity emerge. Critics say the time is ripe to overhaul affirmative action, a well-intentioned policy gone bad. Supporters, perceiving a playing field that is still far from level, maintain that the real work of affirmative action has scarcely begun.

In recent years, the battlefield for affirmative action has shifted from the workplace to education. Higher education—the arena that gave birth to REGENTS OF UNIV. OF CAL. V. BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), the first significant Supreme Court decision endorsing affirmative action—has more recently produced a mishmash of court decisions and laws that have called into question the future of affirmative action. There were arguments not just how Bakke should be applied, but whether it should be applied at all.

Higher education has been a particularly contentious area on affirmative action for many reasons. Because many higher education institutions are public, there is an issue of whether taxpayer money should be going to institutions supporting affirmative action. The public status of COLLEGES AND UNIVERSITIES also ensures that affirmative action debates will be conducted out in the open. Also, the quality and prestige of a college or university is often seen as determining where someone will end up on the socioeconomic scale after graduation, making the affirmative action stakes at such institutions high.

In a reversal of the way they tolerated discrimination through most of the 20th century, many colleges and universities now seem anxious to employ affirmative action to increase the diversity of their campuses. Court cases litigating affirmative action in higher education are brought by disgruntled white students and parents claiming "reverse discrimination." It has been the courts and the legislatures, not the colleges and the universities, that have shown willingness to put the brakes on affirmative action.

The battle over Bakke and its effects on higher education swung into focus in 1996, when the 5th Circuit Court of Appeals struck down affirmative action in college admissions in their decision Hopwood v. Texas, 78 F.3d 932, 5th Cir. (Tex. 1996). The decision covered institutions in the states of Texas, Louisiana, and Mississippi. Within a year of that ruling, enrollments by minorities in higher education institutions dropped in all three states.

In response, the state of Texas guaranteed a place in a state university or college to anyone who had graduated in the top 10 percent of their class. This gave more minorities a chance, and as a result minority enrollment at higher education institutions in the state was higher in 2001 than it was in the year before Hopwood. Several other states, including California and Florida, have adopted versions of Texas's "10 percent" solution. Critics have charged that these programs are inadequate, failing to ensure that minorities are represented at the most prestigious institutions even when they do boost enrollment in state university systems overall.

In 2002, the affirmative action focus in higher education shifted to the University of Michigan. White applicants to its undergraduate school and its law school sued on reverse discrimination grounds. A U.S. district judge in Michigan upheld the undergraduate procedure, but another struck down the law school process. On appeal, a divided Sixth Circuit Court of Appeals ruled in favor of both admissions polices. The U.S Supreme Court agreed to hear appeals of each decision. The administration of GEORGE W. BUSH filed a brief opposing these programs."The method used by the University of Michigan to achieve this important goal is fundamentally flawed," said the statement from President Bush. Defending the policy, Michigan President Mary Sue Coleman said "[President Bush] misunderstands how our admission process works" and denied it was unconstitutional. On June 23, 2003, the Court ruled 6-3 against the under graduate policy because it made each candidate's race the "deciding" factor but uphead 5-4 the law school's process because a compelling state interest exists for universities to create racially diverse campuses.