Affirmative Action is Just the First Step

Mr. Rubio is a history doctoral candidate, Duke University.

"This is about race discrimination and racial preferences!" That was Larry Purdy, Center for Individual Rights (CIR) attorney, speaking on the Tavis Smiley NPR show, broadcast in front of a live (and very lively) audience in Detroit on February 7, 2003. Purdy represents Barbara Grutter, the woman who claims affirmative action cost her admission to the University of Michigan law school. That day in Detroit he was speaking in support of Grutter's suit that will be heard by the U.S. Supreme Court on April 1 along with the CIR's lawsuit on behalf of two rejected white applicants to Michigan's undergraduate school. Challenging Purdy's remarks were co-speakers Saul Green, who is president of Michigan's alumni association, WDET reporter Celeste Headlee, and several audience members--all of whom defended Michigan's admissions program both on the basis of diversity and past discrimination against blacks. Purdy responded by claiming to support affirmative action (but not "quotas"), asserted that it was President Kennedy who coined the term affirmative action in 1961, and even invoked historian John Hope Franklin as someone he argued would never tolerate colleges admitting "underqualified" students.

The CIR seeks to overturn the 1978 Bakke decision that both recognized and curtailed affirmative action in higher education by banning admissions quotas while allowing what Justice Powell called considerations of "diversity"--a consideration that the CIR denies was even accepted by the other justices. All three plaintiffs in the Michigan case have charged the university with admitting similarly or less-qualified black, Hispanic, and Native American applicants, and the CIR astoundingly claims to represent the plaintiffs' "right to be free of racial discrimination."

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The CIR's website reveals that the group's leaders have a predilection for what they call "civil rights lawsuits," which consists of seeking out and representing white individuals battling for admissions, jobs, and promotions in academia and the federal government against alleged "racial preferences." For all their claims of being the true defenders of "civil rights" and a "color-blind" society, CIR lawsuits use whites using civil rights law to reclaim historic preferences based on white skin color.

This is not the first time that whites have used the "equal protection" clause of the Fourteenth Amendment to argue that their rights were being violated--either as individuals, as whites, or both. The first such case was brought by an exclusively-white New Orleans butchers association in 1873. Nor is this the first time that whites have deliberately ignored the paradoxical origins and intent of that amendment in trying to have it both ways: a defense of individual citizenship rights to equal protection combined with an objection to alleged discrimination against a class of white people--who by definition have always enjoyed "racial preferences."

Anti-affirmative action cases have been heard before the Supreme Court since DeFunis v. Odegaard in 1974, with a resulting patchwork of often contradictory decisions in employment, education, contracting, and voter redistricting. Time magazine has ironically dubbed the Michigan cases "the Alamo of affirmative action"--a phrase which the CIR has approvingly cited as a kind of battle cry. Will the current cases settle the issue definitively? A decision against Michigan would clearly devastate many affirmative action plans around the country. But judging how many colleges and corporations have already declared their intention to dodge any mandate against minority admissions or hiring based either on diversity or compensation considerations, what appears likely is a split reaction of complacent rollbacks and defiant end-arounds.

It's that latter phenomenon that drives white conservatives wild, with its roots in a fusion of black-led activism, moral imperatives and legal traditions. That was the conclusion I arrived at when I finished writing my book A History of Affirmative Action, 1619-2000 (Jackson: University Press of Mississippi, 2001) and is still the one I hold today. Last week over 300 organizations, including universities, labor unions, top defense officials, and major corporations filed briefs in support of Michigan (the CIR lined up only 15, including the Bush administration). Many organizations have also announced their intention to continue vigorously recruiting people of color even if the CIR wins. How do we explain this?

When I first starting writing my book in 1996, the year that California voters approved Proposition 209 to eliminate affirmative action in that state, I was surprised at how few historians had addressed the subject. Affirmative action is a old legal term with roots in the even older English common law concept of equity -- much older than President Kennedy's 1961 executive order calling for the federal government to encourage minority hiring in government contracting. In fact, affirmative action's first appearance in federal law came as a provision in the 1935 Wagner Act to restore the job and back pay of any union organizer fired or otherwise unfairly treated for union activities. The law allowed unions practicing white supremacy to become exclusive bargaining agents at workplaces. Affirmative action's first appearance as federal law therefore came as a form of "white affirmative action," with its origins in the earliest differentials in labor, law, and life chances established in this country during colonial times. (The NAACP and Senator Robert Wagner wanted to include an anti-discrimination clause in the law; the American Federation of Labor refused.)

"After the Civil War our government started several 'affirmative action programs.'" Those references to the Freedmen's Bureau and the Fourteenth Amendment by Justice Thurgood Marshall in his 1978 Bakke opinion inspired me to research the roots of affirmative action in Reconstruction. Justice Marshall cited just a few of the countless debates that contained almost identical-sounding arguments to today's debate. He did so to defend the University of California-Davis medical school's "minority" quota system. Those UC-Davis quotas were challenged and overturned by white applicant Allan Bakke, a beneficiary of Florida's Jim Crow public school system.

The Fourteenth Amendment was the 1866 Civil Rights Act writ larger--both as a color-blind amendment as well as one protecting the rights of those historically denied their civil rights. Co-author Rep. Thaddeus Stevens called section two "the most important" clause of that amendment; the clause provided that representation of states could be reduced if blacks were denied the rights of citizenship. Stevens argued that if Congress punished Southern white disfranchisement efforts by proportionally disfranchising whites (clearly a quota plan), it would force a change in white behavior. His prediction of how long it would take to get whites used to practicing equality should make us realize that had Reconstruction and other civil rights laws been adequately enforced we might not be having to have this conversation today. "True," he conceded, "it will take two, three, possibly five years before they conquer their prejudices sufficiently to allow their late slaves to become their equals at the polls."

It's no surprise that academia represents the current focus for an assault on affirmative action. Higher education is widely seen as the best way to improve one's job prospects. Historic employment discrimination against blacks has created the framework for the ongoing affirmative action debate. The most extensive section of the 1964 Civil Rights Act, Title VII, is the one relating to employment discrimination. It is also the only one that contains an "affirmative action" clause and establishes a commission for to investigate complaints.

The Civil Rights Act and Fourteenth Amendment apply to all U.S. citizens, but both laws were also crafted to correct a history of black racial oppression and white racial privilege. The words of abolitionist Senator Charles Sumner of Massachusetts (who often spoke against the white skin "caste" and "oligarchy") are instructive. During the debate over the 1870 Supplementary Reconstruction Bill, his Republican colleague William Fessenden of Maine objected that Sumner's proposal for special homestead provisions for blacks discriminated against whites. Sumner answered simply: "White men have never been in slavery; there is no emancipation and no enfranchisement to be consummated."

Athough the word reparations was never used in the Tavis Smiley show, it was present as an underlying theme, which explains why both issues are so contentious: they both challenge historic white privileges. John Hope Franklin, last year seen fielding questions regarding reparations as the guest on a C-SPAN talk show, at one point told an unsympathetic caller (and there were several) that "affirmative action is the first step toward reparations." The "diversity" compromise contained in Bakke may not be long for this world, but that never should have been the focus of the debate. Justifying affirmative action at its weakest point (diversity) should yield to defending it at its most compelling point historically: black reparations and the abolition of white affirmative action.

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Howard N Meyer - 3/21/2003

"Strangled" is what Justice Powell wrote in BAKKE, is what happened to the Fourteenth for the first century of its life.
What that means will explain what "Affirmative Action" is about.
To understand, it will be worth taking a look at my book
third ed. 2001 reviews the AA controversy;
the book as a whole explains for the lay reader what Powell meant by "strangled"-- and hence that Affirmative Action is what is needed as Reparation for the unconstitutional deprivation that resulted from the strangulation.

davmos - 3/3/2003

Martin Luther king said he longed for the day people would be judged by the content of their character, not the color of their skin. Affirmative action is judging people by the color of their skin, not the content of their character. Furthermore, if slavery justifies preference for blacks, it cannot justify preference for hispanics. Hispanics were never slaves. If racial preferences are justified today, then they were equally justified in the past. Do you believe it was right to deny blacks, Jews, Asiatics etc in the past? Only if it was right in the past, can the same policy be right today. The only change today is who is favored, who denied. The very words of the civil rights act forbade this practice. Only by twisting words to mean their opposite can the policy be justified. This divisive policy must end.

John Moser - 3/2/2003

Everyone seems to be forgetting something here: as much as we might dislike the idea that rich folks get special preferences (for example, as legacies at universities), there's nothing in the Constitution or any other law that forbids it. Racial preferences are illegal, but other forms of preference are not necessarily so.

Clayton E. Cramer - 2/28/2003

"This is not the first time that whites have used the 'equal protection' clause of the Fourteenth Amendment to argue that their rights were being violated--either as individuals, as whites, or both. The first such case was brought by an exclusively-white New Orleans butchers association in 1875."

I think you mean the Slaughterhouse Cases (1873). Try to get
the dates right.

"Nor is this the first time that whites have deliberately ignored the paradoxical origins and intent of that amendment in trying to have it both ways: a defense of individual citizenship rights to equal protection combined with an objection to alleged discrimination against a class of white people--who by definition have always enjoyed 'racial preferences.'"

1. Some of us aren't old enough to have "always enjoyed 'racial preferences.'" Some of us, however, are old enough to be reminded--on a pretty frequent basis--that we are blatantly excluded from scholarships because we are white and Anglo. I've been in classes where scholarship applications passed out to the black students, but not to the white. I've seen scholarships funded with state money offered that were only for Hispanics. The argument based on making up for past racial discrimination gets more and more threadbare with each passing generation.

2. You object to the use of the 14th Amendment for the benefit of whites who have been victimized by discriminatory laws. You are aware, aren't you, that most of the expansion of civil liberties in the last seventy years, is based on the 14th Amendment? Gitlow v. New York (1925) extended freedom of speech against the states, as an example. I take it we will see you lambasting the ACLU for using the 14th Amendment to limit the authority of the states next?

Alec Lloyd - 2/27/2003

Let us not forget the Kennedys in your list of illustrious political dynasties, nor the Gores, nor perhaps the Clintons (Chelsea's starting salary is rather... impressive for a first job).

Jesse Jackson seems to do quite well, as do most of his family.

But back onto the topic (lower that red flag, please) racial set asides are inherently immoral and their utterly bankruptcy is nowhere more obvious than when comparing people in the same family.

My extended family includes blacks, whites and hispanics. Which group should be granted preference? The blacks and hispanics make more money than the whites. Why should their path be eased? All come from a similar socio-economic background.

Would the author like to explain why one set of cousins is getting a free ride and the rest aren't? People united by blood are in fact divided by this policy. Indeed, it is about as divisive as one can get.

The sooner it joins Jim Crow and slavery on the junk heap of history, the better.

Richard Henry Morgan - 2/27/2003

"So when you Gentlemen speak of 'affirmative action', please make it clear. You speak on BEHALF of the rightful WHITE, RICH type, and not that dirty, discredited, nasty Black, Brown or poor type."

Having made your point that "the REAL affirmative action is for mostly RICH White folks", and "the ruling political elite" (of any color?), you seem to have later abandoned that tack. I'm on your side against affirmative action for the rich and the connected (of whatever color). Yes, Bush and Quayle got special treatment, just as Clinton got his own brand of special treatment. There are allies to be made across party boundaries in this fight.

VJ - 2/27/2003

Sorry about the typo's in the above missive. Last sentence should start: 'Then tell me...'

Again another example of affirmative action for our Fearless Leader is his probable desertion during wartime from his TANG unit. See MJ for a graphic of the service record:

VJ - 2/27/2003

Lest we forget the REAL affirmative action is for mostly RICH White folks. It helps if you are of the ruling political elite as well. Mike Powell sits at the head of the FCC. Janet Rehnquist and a Scalia son are attorneys with slim credientials but famous names now working in the high echelons of this administration. George Bush was a famous name at Yale and then at Harvard. It got Mr. Bush out of Vietnam, and helped him conceal an unexplained gap of nearly 2 years in his TANG record. See:

How about burning through nearly 1/2 dozen oil corporations in enarly as many years? Yep, must be a lucky Bush! Enjoy a taxpayer financed windfall for your sports stadium where you used eminent domain to usurp the land of scores of TX citizens? Steal Millions of dollars as a board member of a crooked S&L like Silverado? Coverup insider trading for Harken energy? Well that type of affirmative action is just natural for the rich. It's a Bush family tradition don't you know?


So when you Gentlemen speak of 'affirmative action', please make it clear. You speak on BEHALF of the rightful WHITE, RICH type, and not that dirty, discredited, nasty Black, Brown or poor type.
We'll get along just fine then. There's always been free welfare for the rich. It's only the welfare of the poor that gets followed closely. Do we need a 'different route towards equity'? Why I quite agree. Why not roll back the welfare for the rich seen in the last, oh say just the last 30 years of tax laws and government give aways? The tell me that the 1872 Mining Act is NOT goverment welfare FOR the rich!

Richard Henry Morgan - 2/25/2003

The government, in many ways, have enshrined racial preferences. Rubio points out some preferences historically enjoyed by whites. And some racial preferences have been there for blacks since the Civil War. In fact, traditionally black colleges, even private ones, get special government funding, qua black colleges, that others don't get. And perhaps the greatest beneficiaries of Prop 209 have been Asian-Americans, with the greatest beneficiaries of affirmative action being white females. Just where the 14th Amendment ends and racial preferences start is one of those tricky questions that will excite the passions for years to come.

The UC Davis experience demonstrates some of the problems of racial preferences as administered. The Bakke decison held that race could be a factor, but not the factor. Yet when Ward Connerly was faced with a lawsuit (as trustee of the UC system), he discovered for the first time that when rank-ordered by test scores and grades, once the first member of a racial preferences minority was admitted to UC Davis Medical School, not a single non-preferential was admitted. Was race only a factor then, or had it morphed into the only factor? Another tough question.

The author also seems less sure when discussing continuing white racial preferences, or even establishing their existence, as distinct from lingering advantages of past preferences (or indeed the possibility that other than whites or blacks can have racial preferences). Reparations are also an interesting issue that deserves more than cursory treatment. Exactly how would one go about determining the amount? That would be an interesting question, though not necessarily one that would kill the subject. I can see now the controversial points to come: reparations based on percentage of black blood (a la Jim Crow laws); deduction of welfare payments; etc. There will be more than enough to keep controversialists happy. Or, then again, we might want to take a different route to equity.

J. Merrett - 2/25/2003

Granting one person a benefit and denying that benefit to another, based solely on race is either right, or it is wrong. This writer, along with much of the left, seems to think it is right, so long as the proper people control the levers of discrimination. The fact is that all of history shouts that human beings are not well equipped to render justice based on their qualifications as members of social or intellectual elites. That's why the US is, at least aspirationally, governed by laws rather than men.

More to the point, what possible sense does it make to grant a racial preference to one of two people who grew up at the same time, in the same city, in the same free educational system because (a) one is black and the other white and/or (b) the great-great grandfather of one may have been a slave, while the great-great grandfather of the other was a member of the group which was entitled to own slaves (whether he owned any or not)?

Affirmative action dictates that Colin Powell's kids get a preference (ironic, since Powell's parents were from the Caribbean) which is denied to the kids of an unlettered redneck Georgia trailer-dweller.

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