Affirmative Action is Just the First Step

"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."

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.