Affirmative Action

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AFFIRMATIVE ACTION

The Supreme Court's momentous decisions in brown v. board of education and bolling v. sharpe (1954), and its subsequent implementation decision in Brown II (1955), were followed by a long string of rulings designed to render meaningful and effective the egalitarian promise inherent in the fourteenth amendment. Compulsory racial segregation was at last no longer constitutionally permissible; the Fourteenth Amendment's guarantee of the equal protection of the laws had become the effective law of the land for all levels of the public sector.

But in the judgment of a good many Americans, equality qua equality, even when conscientiously enforced with an even hand, would neither suffice to enable those previously deprived on racial grounds to realize the promises of equality of opportunity, nor would it atone, and provide redress, for the ravages wrought by two centuries of past discrimination. Consequently, as strongly urged by President lyndon b. johnson, programs were established in both the public and the private realms that were designed to go well beyond "mere" equality of opportunity and provide not only remedial but preferential compensatory action, especially in the worlds of education and employment. Labeled "affirmative action"—as distinguished from "neutrality"—these programs were instituted to bring about increased minority employment opportunities, job promotions, and admissions to colleges and universities, among others. Understandably, affirmative action programs quickly became controversial because of their resort to racial quotas, also called euphemistically "goals" or "guidelines." Their proponents' justification has been that to provide an absolute measure of full equality of opportunity based upon individual merit does not suffice; that, given the injustices of the past, both preferential and compensatory treatment must be accorded through "affirmative action" that all but guarantees numerically targeted slots or posts based upon membership in racial groups or upon gender. Most critics of the policy's underlying philosophy have not necessarily objected to "affirmative action" policies such as aggressive recruiting, remedial training (no matter what the expense), and perhaps not even to what Justice lewis f. powell in regents of the university of california v. bakke (1978) termed a justifiable "plus" consideration of race along with other equitable factors. They do, however, object strenuously to policies that represent, or may be regarded as sanctioning, "reverse discrimination," generally characterized by the resort to such devices as the numerus clausus, that is, rigid quotas set aside to benefit identifiable racial groups, as in the controversial case of united steelworkers of america v. weber (1979); to double standards in grading, ranking, and similar requirements on the employment, educational, and other relevant fronts of opportunity; and to "set aside" laws that guarantee specified percentages of contracts to minority groups, as in fullilove v. klutznick (1980).

The basic issue, while philosophically replete with moral and ethical considerations, was ultimately bound to be fought out on the legal and constitutional front, thus engendering judicial decisions. Several provisions of the civil rights act of 1964, as amended—for example, Titles IV, VI, VII, and IX—seemed quite specifically not only to forbid racial, sexual, and other discrimination per se but also to proscribe the use of racial and related quotas. The Supreme Court rapidly confronted five major opportunities to address the issue; in each instance it found itself seriously divided. Each of the five decisions involved "affirmative action" andor "reverse discrimination."

The first and second, defunis v. odegaard (1974) and Regents v. Bakke (1978), dealt with preferential racial admissions quotas that by design advantaged nonwhite applicants and thereby ipso facto disadvantaged whites. In De Funis a five-member majority rendered a nondecision on the merits by ruling the case moot, because whatever the outcome of the case, Marco De Funis would be graduated by the University of Washington Law School. Justice william o. douglas, dissenting from the mootness determination, warned that "the equal protection clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized." In Bakke the Court did reach the merits of the racial quota established by the University of California (Davis) medical school, ruling 5–4 (in two diverse lineups, each headed by Justice Powell) that whereas the latter's rigid quota violated Allan Bakke's rights under the Constitution and the civil rights act of 1964, the use of race as a "plus" along with other relevant considerations in admissions decisions did not. The third case, United Steelworkers v. Weber, concerned an employer-union craft-training plan that, on its face, directly violated Title VII of the Civil Rights Act of 1964, which clearly, indeed literally, interdicts racial quotas in employment. However, with Justices Powell and john paul stevens disqualifying themselves from sitting in the cases, Justice william j. brennan, speaking for a majority of five, ruled that although the letter of the law appeared to forbid the arrangement, its purpose, as reflected in the legislative history, did not. The fourth case, Fullilove v. Klutznick, raised the fundamental question whether Congress, notwithstanding the Fourteenth Amendment's equal protection clause, could constitutionally legislate a ten percent set-aside plan for minority-owned construction companies desirous of obtaining government contracts. "Yes," held a 6–3 plurality—actually, the Court split 3–3–3—finding such legislation to be within the federal legislature's spending and regulatory powers under Article I of the Constitution. In his scathing dissenting opinion, which he read in full from the bench on the day of the decision, Justice Stevens charged that the law represented a "perverse form of reparation," a "slapdash" law that rewards some who may not need rewarding and hurts others who may not deserve hurting. Suggesting that such a law could be used simply as a patronage tool by its authors—it had, in fact, been written on the floor of the House of Representatives without having gone to committee for hearings—he warned that it could breed more resentment and prejudice than it corrected. Echoing the first Justice john marshall harlan's memorable phrase in dissent in plessy v. ferguson (1896), namely, that "our Constitution is color-blind and neither knows nor tolerates classes among citizens," Stevens asked what percentage of "oriental blood or what degree of Spanish-speaking skill is required for membership in the preferred class?" With deep feelings, he suggested sarcastically that now the government must devise its version of the Nazi laws that defined who is a Jew, musing that "our statute books will once again have to contain laws that reflect the odious practice of delineating the qualities that make one person a Negro and make another white." The fifth case, Memphis Fire Department v. Stotts, seemed to draw a line (although only by the narrowest of margins, 5–4) when the Justice White-authored majority opinion held that duly established bona fide nondiscriminatory seniority systems supersede affirmative action plans.

Depending upon interpretation, one person's "affirmative action" may well constitute another's "reverse discrimination." Nonetheless, it is possible to essay distinctions. Thus, "affirmative action" may be regarded as encompassing the following five phenomena, all of which would appear to be both legal and constitutional: (1) both governmentally and privately sponsored activity designed to remedy the absence of needed educational preparation by special, even if costly, primary, and/or secondary school level preparatory programs or occupational skill development, always provided that access to these programs is not bottomed upon race or related group criteria or characteristics, but upon educational or economic need; (2) special classes or supplemental training, regardless of costs, on any level of education or training from the prenursery school bottom to the very top of the professional training ladder; (3) scrupulous enforcement of absolute standards of nondiscrimination on the basis of race, sex, religion, nationality, and age; (4) above-the-table special recruiting efforts to reach out to those members of heretofore underused, deprived, or discriminated-against segments of the citizenry; (5) provided the presence of explicit or implicit merit, of bona fide demonstrated or potential ability, the taking into account of an individual's race, gender, religion as an equitable consideration—the "plus" of which Justice Powell spoke in Bakke—but only if "all other things are equal."

"Reverse discrimination," on the other hand, which is acceptable neither legally nor constitutionally, would constitute the following quartet: (1) adoption of a numerus clausus, the setting aside of quotas, be they rigid or semirigid, on behalf of the admission, recruitment, employment, or promotion of individuals and groups identified and classified by racial, religious, sexual, age, or nationality characteristics; such characteristics are non sequiturs on the fronts of individual merit and ability and may well be regarded as an insult to the dignity and intelligence of the quota beneficiaries; (2) slanting of what should be neutral qualification examinations or requirements; double standards in grading and rating; double standards in attendance, retention, and disciplinary requirements; (3) those "goals" and "guidelines" that allegedly differ from rigid quotas, and thus presumably pass legal and constitutional muster, but that, in application, are all but synonymous with enforced quotas; (4) legislative or executive "set aside" programs, such as the one at issue in the Fullilove case, that mandate percentage-quotas of awards and activities based upon racial, gender, and related classifications.

"Reverse discrimination" purports to justify itself as atonement for past discrimination. It sanctions the call to children to pay for the sins of their forebears; it embraces a policy that two wrongs make one right, that "temporary" discrimination is "benign" rather than "invidious" when it is designed to remedy past wrongs. Since the "temporary" all too often becomes the "permanent," temporary suspensions of fundamental rights are fraught with permanent dangers and represent prima facie denials of the equal protection of the laws guaranteed by the Fourteenth Amendment and the due process of law guaranteed by the Fifth.

The line between "affirmative action" and "reverse discrimination" may be thin and vexatious, but it does not lie beyond recognition and establishment in our constitutional constellation.

Henry J. Abraham
(1986)