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Reality of Discrimination, Necessity of Affirmative Action

by Emmanuel O. Iheukwumere

Fall 1999, Vol. 62, No. 3

African-Americans and other minorities have been the unwilling victims of racial discrimination for so long. Discrimination against African-Americans, however, is unique, for it has been both pervasive and pernicious. Neither the Emancipation Proclamation nor the subsequent reconstruction-era legislations intended to protect the newly freed slaves lessened the extent of racial hatred and prejudice directed at this segment of America’s population. Perhaps fully aware of this fact, President John F. Kennedy introduced the concept of affirmative action to federal decision making in 1961 by signing into law Executive Order 10925.

During a speech at Howard University in 1965, JFK’s successor, President Lyndon Baines Johnson, strongly voiced his support for the newly adopted concept by poignantly noting, "Do not take a person that for years has been hobbled by chains, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others' and still justly believe that you have been fair." In support of his position on affirmative action, LBJ signed Executive Order 11249, requiring contractors and subcontractors to the federal government to take affirmative action steps to actively recruit and hire qualified workers from every segment of the workforce.

The term "affirmative action" includes recruitment and training programs to ensure the inclusion of qualified minorities and women in the talent pool when hiring, selection, admission and promotion decisions are made. Although effectively made almost synonymous with quota by opponents and/or individuals and groups traditionally opposed to genuine integration and minority progress, affirmative action is not a quota nor is it the substitution of numerical dictates for merit-based decisions. Both decisions of the Supreme Court of the United States in Defunis v. Odegaard and Bakke v. Regents of the University of California make this point clear. Rather, affirmative action is a genuine attempt to address the past and continuing effects of pervasive and pernicious discrimination in our society.

This article briefly examines some of the conditions leading to the adoption of affirmative action, benefits of affirmative action programs, the assault on affirmative action and a public policy devoid of affirmative action, and concludes that affirmative action is still necessary in light of the reality of continuing discrimination within every segment of our society.

Prior to affirmative action and the passage of the Civil Rights Act of 1964, life for minorities and women was a series of challenges and legally sanctioned exclusion from full participation in the affairs of society. In recruitment, hiring, promotion and admission, officials discriminated against minorities with impunity and justified their actions as within their discretionary authorities and/or based on merit selection without bordering to objectively define merit and truly subject their decisions to its dictates.

African-American lawyers, in particular, found the doors to licensure and employment opportunities slammed in their faces whether or not they excelled in law school. Exclusionary policies resulted in situations where the state of Delaware had one licensed African-American lawyer, Louis L. Redding, from 1929 to about 1955, while the state of Alabama had only one practicing attorney, Arthur D. Shores, for about ten years. Legal giants like Justice Thurgood Marshall were denied admission to the University of Maryland, while countless other minorities were summarily excluded from the corridors of business, the entertainment industry and academic faculties.

Writing in the September 1996 issue of the ABA Journal, author-lawyer Lincoln Caplan provided a poignant reminder of the kind of obstacles minorities faced in the legal profession prior to the Civil Rights Act and the implementation of affirmative action programs. Caplan noted that upon graduation from Yale Law School in the early 1940s with the cherished distinction of "best oral advocate" and a glowing letter of recommendation from the dean of Yale Law School, the recently departed eminent jurist and scholar, A. Leon Higginbotham, contacted Yale alumni in the City of Brotherly Love about employment. Unaware that Judge Higginbotham was African-American, Yale alumni assured him that securing a well-paying legal job would be a piece of cake, and in fact informed him that he would have a bevy of law firms to choose from. However, when the young graduate arrived in person, the same alumni who had previously assured him of job offers changed their tunes to one of, "Of course there is nothing we can do for you." Whether it was in the field of law, or in other areas of life, the exclusion of minorities from the main stream of society was a routine societal practice prior to the implementation of affirmative action programs.

Following the lead of the federal government, states and local governments, segments of private industry and schools, among others, adopted affirmative action programs as a way of addressing the past and continuing effects of racial discrimination. Perhaps encouraged by the 1978 Supreme Court of the United States ruling in Bakke v. Regents of the University of California, many institutions of higher education began to factor race, among other criteria, into the admission process. The result was a more diverse student body. With the implementation of affirmative action programs, qualified minorities who would otherwise have been excluded from meaningful participation in the old days of unrestrained and unbridled racism and prejudice found doors opening to them in both the public and the private sectors. In addition, the entrepreneurial spirit of women began to blossom and gain a foothold in the economy.

Government agencies, in particular, in many instances insisted that contractors and other entities desiring business from the government make good faith efforts to recruit, hire and promote qualified minorities and women. The federal government, as part of its affirmative action policy, required contractors on federal government projects, and in many cases, projects receiving federal funds, to reserve a specified percentage of their subcontracting work for qualified minorities.

Although affirmative action programs have greatly contributed to the enhancement of opportunities for qualified minorities and women and have also chipped away at the exclusionary system in place prior to their implementations, they have not been able to eradicate the entrenched racism and prejudice inherent in a society obsessed with the color of an individual rather than the content of his or her character. In the words of U.S. Supreme Court Justice Sandra Day O’Connor, a frequent supporter of rulings detrimental to affirmative action programs, "The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality."

Assaults on Programs
Nothwithstanding the great strides in the quest for equal opportunity that affirmative action programs had made and were making, the ascent of the Reagan and Bush administrations, and the elevation of Justice William Rehnquist to the post of Chief Justice of the Supreme Court of the United States marked the beginning of consistent and aggressive assaults on affirmative action programs. Reagan and Bush stalwarts such as Pat Buchanan, well known for his divisive and racially insensitive stances such as his shameful support for the infamous apartheid regime of South Africa and opposition to civil rights measures, and current U.S. Supreme Court Justice Clarence Thomas, among others, have attacked affirmative action programs with unbridled zeal. These individuals have argued that affirmative action programs were contrary to the original intent of the framers of the U.S. Constitution, without providing either a clue or a rationale as to why those supposedly well-meaning framers would be against a concept that has more than any other measure gone farther in redressing the effects of past and present discrimination and prejudice. Nor have these individuals crafted a morally or legally defensible reason to justify adherence to an intent, even if appropriately attributed to the framers of the Constitution, that sanctioned the preaffirmative action status quo that has been shown to be clearly exclusionary. In addition to the Reagan and Bush stalwarts, arguably eminent jurists and scholars such as Judges Richard Posner and Robert Bork have weighed in with arguments that affirmative action programs constituted reverse discrimination without addressing the absence of any other effective means of redressing recognized past and present discrimination and prejudice, and without acknowledging, as Justice O’Connor did, that racial discrimination is alive and well.

In the aftermath of the political and scholarly attacks on affirmative action programs, the Supreme Court of the United States took a scalpel to affirmative action programs established by states and/or their political subdivisions in the seminal case of Richmond v. Croson. In Croson the court applied the strict scrutiny test to affirmative action programs for the first time and struck down an affirmative action program mandated by the city of Richmond in construction projects with the city.

A few years after Croson, the Supreme Court of the United States resumed and intensified its assault on affirmative action by striking down its implementation in federal contracting in the 1995 case of Adarand Constructors v. Pena, 515 U.S. 200. In addition, Adarand effectively overruled the 1990 precedent, Metro Broadcasting Inc. v. FCC, 497 U.S. 547, which upheld affirmative action in FCC programming.

Taking a page from hostile U.S. Supreme Court jurisprudence on affirmative action, many states, including but not limited to California and the state of Washington, launched voter initiatives to do away with affirmative action programs within their states. With the backing of groups such as the Heritage Foundation, the Center for Equal Opportunity and the Institute for Justice, all traditionally opposed to equal opportunity for minorities and any loosening of the status quo that perpetuated exclusion, California in 1996 passed proposition 209, which purportedly dismantled all affirmative action programs within the state government. The state of Washington followed California’s example with the passage of proposition 200 in November 1998. However, in 1997 the citizens of Houston, Texas rejected a similar measure patterned after California’s proposition 209 when it became obvious to voters that, contrary to its stated purpose of "color blindness," the measure was really intended to perpetuate, or rather resurrect, the preaffirmative action status quo with its exclusionary tentacles for minorities.

Is It Still Necessary Today?
A frequent refrain of the opponents of affirmative action is that equality of opportunity is now the rule and not the exception. These opponents further buttress their opposition to affirmative action by arguing for a "color blind" system that allegedly will totally eliminate considerations of race in decisions to recruit, hire, select, promote or admit. While this idea on its face appears laudable, the reasons behind it are not only specious but also conceal the hidden agendas of its proponents. A careful examination of these proponents reveals that they are mostly the same individuals and/or groups who have supported policies inimical to minority progress. These individuals and/or groups include, among others, Pat Buchanan, Jerry Falwell, Senator Jesse Helms of North Carolina and the Heritage Foundation, all individuals and/or groups that supported the repressive and racist apartheid regime of South Africa and at one time or another strenuously opposed integration and the 1964 Civil Rights Act.

In addition, these individuals and/or groups conveniently forgot to acknowledge studies such as those conducted by the Kaiser Family Foundation in association with the Washington Post and Harvard University, that clearly indicate the continuing pervasive racism within society. These proponents of the so-called "color blind" philosophy fail to mention that most hiring, promoting and admitting decisions do not have objective criteria. These decisions instead are left to the discretion of decision makers who are overwhelmingly Caucasian males. But for affirmative action policies, it is doubtful that these decision makers would have foregone or would forgo their natural inclination to favor those who look, talk and act like themselves.

The notion that in the absence of inclusionary policies like affirmative action programs decision makers will simply adhere to "color blind" hiring, promoting and admitting practices is clearly without merit and ignores well established racial tendencies in our society. The fact that less than two percent of the law clerks hired by the nine justices of the Supreme Court of the United States during their entire tenure have been African-American is no coincidence. The fact that none of the Justices of the Supreme Court of the United States, past and present, has ever hired a Native American as a law clerk is not an accident. The fact that the Chief Justice of the United States, William Rehnquist, has not seen fit to hire an African-American law clerk during more than twenty-five years on the court speaks volumes about racism and this so-called quest for a "color blind" philosophy. The fact that Justices Antonin Scalia and Anthony Kennedy, ardent proponents of this "color blind" philosophy, have never hired an African-American law clerk says a lot about the motives of these individuals and groups who piously espouse a so-called "color blind" practice but completely ignore its implementation.

Action, as we all know, speaks louder than words. The simple conclusion is that racism, in the words of affirmative action opponent Justice Sandra Day O’Connor, is still an unfortunate reality. Thus, affirmative action programs are still necessary to ensure the inclusion of minorities in the proverbial American dream.

Will It Survive?
In the wake of U.S. Supreme Court hostility to affirmative action and the passages of propositions 209 and 200 in California and in the state of Washington, respectively, well meaning groups and individuals have expressed the fear that affirmative action is on its deathbed. A close look, however, indicates that there is still hope for optimism. Executive Order 11249 still stands, and by virtue of the supremacy clause, appears to compel most recipients of federal funds to adhere to affirmative action, notwithstanding propositions 209 and 200. The action of voters in rejecting a proposition 209-like measure in Houston indicates that there are still men and women of goodwill who want continuation of a system of inclusion and not a return to the preaffirmative action era of exclusion with impunity. Recently, the newly elected democratic governor of California proposed the automatic admission into college of the top ten percent of each high school graduating class. Although this proposal, if adopted, will likely not address the need for inclusion in graduate and professional schools, it is a good first effort to bring balance into the admission process, which saw the exclusion of about 800 minority applicants with perfect 4.0 GPAs from the University of California system, particularly at Berkeley.

Although it is difficult to predict whether the Supreme Court of the United States will soon provide fair balance in its affirmative action jurisprudence, last year in a pleasantly surprising move, the court refused to hear an appeal of a Nevada Supreme Court decision, Farmer v. University and Community College System of Nevada, 930 P.2d 730 (1997), cert. denied, 66 USLW 3474 (1998), that upheld the right of a university to hire a qualified minority to promote diversity within its faculty. In addition, despite the strong efforts of opponents of affirmative action in Congress to abolish affirmative action within the federal government, President Clinton has moved ahead with a well-reasoned approach to amend and not abolish federal government affirmative action programs.

Due to the continuing brazen exclusion of minorities from active participation in the mainstream of American life, notwithstanding the Emancipation Proclamation and post-Civil War measures designed to assist minorities, particularly African-Americans, Presidents Kennedy and Johnson initiated federal government affirmative action programs as a means of providing well-deserved opportunities to qualified minorities. The ascent of the Reagan and Bush administrations and the subsequent equation of affirmative action programs with quotas and reverse discrimination invited U.S. Supreme Court assaults on affirmative action and made possible passage of anti-affirmative action measures such as propositions 209 and 200 in California and the state of Washington, respectively.

There is, however, still hope that affirmative action will survive. The continuing viability of Executive Order 11249, the actions of President Clinton and the rejection of a proposition 209-type measure in Houston appear to indicate a ray of hope for the survival of at least modified forms of affirmative action programs.