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POLITICAL AND CONSTITUTIONAL ASPECTS OF AFFIRMATIVE ACTION
IN THE UNITED STATES
Ellis Katz
Professor da Temple University - EUA.
I am amazed by how quickly the affirmative action controversy has spread to so many countries throughout the word. In the United States, we have been struggling with a affirmative action for almost thirty years, and while we have hardly been successful in resolving all the complicated issues, I thought that a survey of the American experience might be useful. Today, I would like to explore a bit of the history of affirmative action in the United States, and then turn to an evaluation of the arguments that are involved in this continuing debate.
Like Brazil, the United States has a history of slavery. During the seventeenth and eighteenth centuries, slavery existed through the North American colonies. After independence, however, slavery was quickly eliminated in the northern states. But in the southern states, slavery became a way of life, pervading the social and economic fabric. With the election of Abraham Lincoln as President in 1860, the southern states attempted to secede from the Union and establish their own independence confederacy of slave holding states. The results was the terrible and bloody civil war of 1861-1865.
With the northern victory in the war, the Constitution was amended to forever forbid "slavery" anywhere in the United States. Three years later the Constitution was further amended to provide that no state shall "deny to any person... the equal protection of the laws" - an attempt to make sure that the southern states treated their newly free black citizens the same as they treated their white citizens. While the amendments successfully ended slavery as an institution, a series of decisions by the United States Supreme Court severely limited the power of the federal government to protect the rights of the newly free blacks and permitted the southern states to adopt a policy of racial segregation though which blacks were assigned to a grossly inferior status in those states.
For our purposes, the most important of these Supreme Court decisions is Plessy v. Ferguson. The case involved a Louisiana statute that required blacks to ride in separate railroad cars from whites. The plaintiff argued that such state laws violated the new equal protection clause of the Constitution. The Supreme Court disagreed, holding that legal ciassifications based on race did not violate the equal protection clause so long as the facilities provided for each race were basically equal - the infamous "separate but equal" doctrine. Following the Plessy decision, the southern states adopted laws requiring racial segregation in transportation, housing, theaters and restaurants, and most importantly, in education. Thus by the turn of the century, the southern states were able to consign blacks to a separate, and inferior place in society. This was the state of affairs untill 1954 when in Brown v. Board of Education, the practice of racial segregation and, ultimately, gave impetus to affirmative action.
In Brown v. Board of Educatíon the Court was called upon to reconsider its Plessy decision. In its Brown opinion, the Court held that separate facilities in education could never be equal because state required segregation did an injury to young black children, making them feel inferior and unworthy of being full members of the larger society.
The Brown decision required that southern states dismantle their racially segregated school system and provide education on a non discriminatory basis "with all deliberate speed". There was, of course, great opposition to this decision in the southern states, and, at first, the federal courts seemed to accept their delaying. But by 1968, the Court grew impatient with the slow progress towards desegregation. In Green v. County School Board the Court held that "the burden on a school board today is to come forward with a plan (for desegregation) that promises realistically to work, and promises realisticaily to work now." In other words, it was the obligation of the school district to come up with a plan that promised to achieved desegregation, and the validity of that plan was to be judged by the results it actually achieved, not on good intentions, but on results. And how is one to judge results? By the actual number of black and white children attending school together, of course. Three years later, the Court specifically upheld the use of racial quotas as a measure of school desegregation. In other words, if a school district contained fifty percent white children and fifty percent black children, then it was assumed that the district did not achieve desegregation until every school building, even every classroom, approached a 50-50 racial composition. This affirmative obligation to achieve racial desegregation came into effect only when there had been a constitutional violation, only when the school district had been operating under a governmentaly sanctioned system of racial segregation - what we refer to as segregation de jure. But in the absence of some state action that causes racial segregation, there is no constitutional violation and therefore, no obligation to desegregate.
Affirmative action programs in private employment governmental contracting have different roots from the school desegregation effort, but have come to much the same results - that there must be a finding of illegal discrimination before quotas and the other accountrements of affirmative action come into effect.
The Civil Rights Act (CRA) of 1964 brought the full force of the federal government to bear upon racial (and other) discrimination by private employers. While the general intent of the 1964 law was fairly clear the question of what constituted discrimination was not nearly so well defined. Obviously, the law forbad intentional discrimination in the hiring or promotion of employees. But what about hiring or promotion practices that, while nondiscriminatory on their face, had a differential impact upon blacks and white. In Griggs v. Duke Power Company (1971), the U.S Supreme Court ruled that two general intelligence tests used by the company to recruit employees violated the Civil Rights Act because white applicants did substantially better on the tests than did black applicants. And since test scores were the major criterion on which hiring decision were made, then it was little wonder that the Duke Power Company was almost an all-white enterprise. The Court did not rule out the use of all such tests, but made it clear that "if an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited". And under this tests, the burden was on the employer to show that the employment qualification was necessary to job performance. As a practical matter, this burden of proof was almost impossible for employer to meet, so that whenever a business was found to have only a small number of black employees, it was assumed that its employment practices violated the Civil Rights Act. And what is the remedy for such a violation? Title VII of the statute specifically authorizes courts to use quotas as a measure of compliance with the law once a finding of discrimination has been made. Thus, the situation in employment became much the same as in public education. Once there was a finding of illegal discrimination, then racial quotas are a perfectly appropriate way to bring the offending body into compliance. But it is important to note that quotas are appropriate only as a remedy for illegal discrimination. I have not addressed the use of racial quotas in the absence of a finding of past illegal discrimination.
Affirmative action programs in the awarding of governmental contracts have their basis in federal, state and local legislation that require a certain percentage of governmental contracts be awarded to minority-owned enterprises. For example, a 1977 federal law required that tem percent of all federal construction contracts be set aside for minority contractors. The law was upheld in Fullilove v. Klutznick (1980) over objections that such racial references violated the equal protection clause of the Fourteenth Amendment. The Court reasoned that the past history of racial discrimination in the construction trade was ample justification for racial references and quotas. Thus, in governmental contracting, as in public education and employment, past discrimination triggers racial preferences and quotas.
But what about the situation in which there is no past history of segregation, one in which the school, the employer or the government agency simply desires to implement a policy of affirmative action, complete with racial preference and quotas? The U.S Supreme Court first addressed that question in Regents of the University of Califomia v. Bakke in 1978.
The Bakke Case involved a new program of the Medical School of the University of California, which, in order to achieve a more diversified student body, set aside sixteen admissions for blacks students, even though they might have scored lower on admissions tests than did white applicants. Allan Bakker, a white applicant who had been denied admission even though he had higher test scores than several of the black students who had been admitted under the special set aside program, challenged the program as violative of the equal protection clause, claiming that he had been discriminated against because of his race. The Supreme Court was very badly divided. Four justices voted to uphold the set aside program, maintaining that racial ciassifications did not violated violate the Constitution unless they discriminated against blacks. Four other justices voted to invalidate the University of California’s program, and made it clear that they would vote to invalidate any program that gave a racial preference. The deciding vote was cast by Justice Powell, who, while voting against the University of California’s program, state that he would uphold programs of affirmative action that, in the name of diversifying the student body, took the race of the applicants into consideration, but was not the sole criteria on which admission decision were made.
By the 1980s, all forms of affírmative action came under increasing attack. Both presidents Ronald Reagan and George Bush made modest efforts to limit affirmative action programs, but their real impact was their appointment of four justices to the U.S Supreme Court which grew increasingly hostile to racial preferences and quotas. For example, in 1989, the Supreme Court invalidated a program of the City of Richmond, Virginia that set aside thirty percent of city contracts to minority-owned businesses. The Court reasoned that because there was no evidence that the City of Richmond had ever discriminated against minority-owned enterprises in the past, laws that gave black-owned businesses preference over white-owned ones violated the equal protection clause of the Fourteenth Amendment. And in Hopwood v. Texas (1996), the Court let stand a decision by a U.S District Court that had invalidated all affirmative action efforts by the University of Texas.
Even more important perhaps, is Proposition 209 enacted into law by California voters in 1996. The initiative prohibits the use of "race, sex, color, ethnicity, or national origin as a criterion for either discriminating against, or national origin as a criterion for either, discriminating against, or grating preferential treatment to, any individual or group in the operation of the state's system of public education, or public contracting", thus eliminating all affirmative action efforts by state agencies. The impact of Proposition 209 in California has been enormous and the number of blacks in higher education and the number of state and local contracts awarded to black owned business have already been reduced substantially. Today, at least twenty states are considering Proposition 20-type legislation.
Affirmative action has become increasingly controversial in the United States and clearly the political mood of the country has become more skeptical of racial preferences and quotas. Whatever the future of affirmative action as public policy in the United States, let me conclude by presenting and evaluating some of the major arguments for and against it.
First, perhaps the strongest argument against affirmative action is that it judges people on the basis of their race, rather than on the basis of their individual merits. But an argument can be made that race has always been a factor in evaluating individuals. In fact, I maintain that race continues to be important in evaluating individuals for employment, admission to universities and the awarding of business contracts. Racism has been, and continues to be a powerful force in American society. I believe that in the absence of a substantial governmental presence to counter the racism that is built into the fabric of America, blacks, and perhaps other minorities, would continue to suffer discrimination. Given this perspective, I would prefer to see race as a factor that advantages, rather than disadvantages traditionally underprivileged groups.
Second, it is sometimes argued that racial preferences and quotas mean that we are forced to hire, and admit to our universities, unqualified individuals. Frankly, there is nothing in the history of affirmative action to suggest that this is true. Minorities hired under special recruitment programs, or admitted to universities must, in all causes, be qualified. If the argument were modified to claim that less qualified individuals may be hired or admitted, the arguments might have more truth to it. But, even if individuals are less qualified, they are, none the less, qualified to perform the job or to succeed at a university. In fact, one study examined the success rates of those admitted to medical school under the University of California's special admission program and found that the special admission students had a slightly higher graduation rate than students admitted as part of the general pool of applicants. Furthermore, "qualifications" are often unrelated to job or university performance. In Griggs v. Duke Power Company, for example, the Supreme Court found that the tests of general intelligence used by Duke Power Company to recruit employees were totally unrelated to actual job performance. They served only the function of screening out black aplicants. It is only reasonable, I believe, that "qualifications" must be demonstrably related to job performance or success at the university before they can be used to judge individuals.
Third, some claim that affirmative action programs have created a schism between whites and blacks and, in fact, increases white resentment and black rage. There may be some logic to this argument but public opinion data suggests that both white resentment and black rage have actually decreased over the past third years or so. More specifically, a 1995 poll found that 53 percents of Americans (both white and black) favored affirmative action. While there can be no doubt that affirmative action, especially the use of quotas, has increased tensions between blacks and whites, there is nothing to indicate that it has led to racial lines impossible.
Fourth, some argue that affirmative action has actually injured blacks by making them question their sense of self worth. According to this argument, blacks must lift themselves by their bootstraps and "earn" whatever they achieve. I am not really in a position to evaluate this argument, but is seems to me that whites are more likely to question the "worth" of blacks that have achieved success, believing that they obtained their positions because of policies of racial preference rather than by their own merit. There may be some truth to this, but it is a result to white resentment rather than of black insecurity. In any event, according to public opinion polls, blacks continue to favor affirrnative action, perhaps believing that white racism would prevent them from rising by their own efforts and merit.
Finally, let me offer one argument in favor of affirmative action. Throughout American history, blacks have been marginalized to the fringes of American society, creating what one commentator has called "social dynamite". This is a dangerous situation, threatening our domestic peace, prosperity and tranquility. In my view, it is imperative to create a large black middle class with a substantial stake in society. Simply put, affirmative action is probably the quickest way to integrate blacks into the mainstream of American society. Affirmative action may be troubling and inconsistent with American individualism, but it is in my interest as a middle class white American for blacks to have the same stake in the social order as I do. As Abraham Lincoln said almost 140 years ago, we cannot exist as a society "half slave and half free". Affirmative action, I believe, is necessary for my well-being as well as for the well-being of millions of marginalized blacks Americans.
Many of my colleagues in the United States disagree with my history and evaluation of affirmative action. I am sure that many of you will disagree as well. I have tried to be provocative, and hope that I have provoked you into offering some questions and comments. Thanks you for allowing me to share these thoughts with you today.