Abstract
Today, affirmative action’s greatest power comes in its deployment as an extremely efficient rhetorical tool for mobilizing White resistance to racial equity, appropriating civil rights language to serve the goals of White supremacy.
On August 1, 2017, The New York Times reported on an internal document from the Civil Rights Division of the Department of Justice (DOJ) announcing a call for applications from individuals interested in working on a project to investigate and potentially litigate “intentional race-based discrimination in college and university admissions.” Essentially, it both lent credence to and signaled that the DOJ would be taking up claims that institutions of higher education discriminate against White applicants. More striking, this hiring memo suggests that the current administration plans to interrogate affirmative action in the DOJ’s front office rather than in the Equal Opportunities Section of the Civil Rights Division, which has typically handled claims concerning college and university civil rights issues. This change means that government challenges to affirmative action policies will be handled by the President’s political appointees in the DOJ rather than by federal staff employees of the Civil Rights Division. The ACLU (American Civil Liberties Union) warns that this proactive attack on affirmative action will “mark an alarming shift in direction that threatens the hard-fought progress made by civil rights advocates and the [DOJ] itself over the past decade.”
The ACLU and the broader public, though, shouldn’t be surprised. The Trump administration’s challenge to affirmative action connects to a decades-long conservative attack against remedial civil rights policies. Indeed, within a decade and a half after the passage of the Civil Rights Act of 1964 and the formation of the Equal Employment Opportunities Commission, wealthy White conservatives mounted an attack on civil rights policies generally and affirmative action specifically. Beginning in the Reagan Era, these wealthy White conservatives have been strategically positioned within the federal government by each Republican administration, and Democratic administrations have generally neglected to reverse the slant. As a result, affirmative action has become a flaccid policy effort with little structural impact. Its greatest power comes in its deployment as an extremely efficient rhetorical tool for mobilizing White resistance to racial equity, appropriating civil rights language to serve the goals of White supremacy.
A Band-Aid on Deep Wound
President John F. Kennedy first used the words “affirmative action” in his 1961 Executive Order creating the Committee on Equal Employment Opportunity, but it was President Lyndon B. Johnson who gave those words some actionable power. Johnson’s 1965 Executive Order 11246 prohibited discrimination on the basis of race, color, religion, sex, or national origin in federal public contracts and called for federal contractors to “take affirmative action to ensure that applicants [were] employed, and that employees [were] treated during employment, without regard to race, color, sex or national origin.” Johnson also ordered that 10% of federal contracting dollars be set aside for minority business enterprises, defined as those whose ownership was composed of at least 50% under-represented minorities. This relatively benign set-aside coordinated with Johnson’s public recognition that historically explicit White supremacy had resulted in deeply embedded structural and institutional racial inequality that would require positive governmental action to remedy.
Other institutions soon followed suit, creating policies to take affirmative actions toward creating institutional racial equity. The University of California at Davis Medical School, for example, determined that the most effective way to increase racial equity in the school and profession of medicine was to set aside a small number of spaces (16 out of 100) for under-represented minorities who had historically been excluded.
The Trump administration’s challenge to affirmative action connects to a decades-long conservative attack against remedial civil rights policies.
Political and legal challenges to so-called affirmative action policies began immediately. Allan Bakke, a White applicant to the UC–Davis Medical School’s program, sued, claiming that the set-aside program discriminated against him in violation of the U.S. Constitution and constituted “reverse discrimination” against all White applicants. The case of Regents of the University of California v. Bakke (438 U.S. 265 [1978]) reached the Supreme Court in 1978 with support from the Pacific Legal Foundation, funded by conservative individuals and organizations such as the Heritage Foundation. The Pacific Legal Foundation constructed an amici brief in the Bakke case asking the Supreme Court to find the UC–Davis Medical School’s program and indeed any conscious consideration of race a constitutional violation.
Though the Court did not hold that all consideration of race violated the constitution in the Bakke case, it did find the UC–Davis policy unconstitutional and held that set-asides or quotas were constitutionally prohibited because they completely prevented access to some spaces for White applicants. Moreover, the Court held that only a “compelling government interest” would warrant the explicit consideration of race by a public institution like a college or university and that neither remedying past discrimination nor remedying contemporary racial disparities (even if severe) was compelling enough to justify affirmative consideration of race in public institutional admissions practices. The Court concluded that the only compelling interest for the consideration of race was the creation of “diversity” in education.
The diversity-only rationale proved very weak, not only because it made the empirical reality of centuries of racial oppression and the structural consequences of that oppression legally irrelevant, but also because it constructed race as an amorphous concept with the same consequence as experiences like growing up in a rural area, developing expertise at playing an instrument, participating in rodeos, etc. Yet the Court’s conception of racial diversity connected to the abstract, liberalist frame that the Pacific Legal Foundation and other conservative organizations posited in their challenges to affirmative action policies: this rhetorical frame utilized the language of civil rights and equality while simultaneously disavowing the relevance of historical and contemporary institutional and structural racism. The result was the legal formation of an impotent affirmative action policy, unable to redress structural racial inequality and White domination. Moreover, the Court’s decision in Bakke turned affirmative action policies into the metaphorical equivalent of using a band-aid to stop the bleeding from an enormous, gaping wound.
White By Design
Within a decade of the implementation of policies designed to remedy the long history of legally imposed White supremacy and the oppression of people of color, wealthy White conservatives (with family names like Coors, DeVos, Scaife, and Hunt) had mobilized massive resources to reverse the gains of civil rights initiatives in general and affirmative action specifically. Ronald Reagan’s presidential campaign gained mass support from this constituency as it deployed coded and explicit anti-civil rights language. For example, his campaign asserted that government intervention in “social” matters like racial inequality was inappropriate. When he became president in 1980, Reagan rewarded these voters by positioning them in institutional positions of power within the federal government where they could implement a rhetorical, political, and legal strategy to halt government oversight over issues like school desegregation, bilingual education, racially conscious voter districting, and, of course, affirmative action.
Reagan swiftly appointed Jay Parker to head his Equal Employment Opportunities Commission (EEOC) transition team. Parker, an African American man, was a known supporter of South African apartheid and had worked in the late-1970s (for $10,000 per month) as a paid consultant for the Republic of Transkei Bantustan, a briefly recognized independent nation within South Africa that colluded with the South African government to support the continuation of racial apartheid. Parker mentored a young Clarence Thomas (later appointed by President George H.W. Bush to the Supreme Court to replace Justice Thurgood Marshall). Ultimately Reagan appointed Thomas head of the EEOC, where he identified himself as an “original constitutionalist,” ignoring that the unamended constitution was specifically organized to create and protect White supremacy and the enslavement of African Americans. Thomas believed that the constitution was colorblind and, as such, did not permit racially conscious government policies or law (even when policies aimed to remedy racial oppression created by the government). The EEOC was a relatively new organization, just gaining efficacy in the battle against employment discrimination, when Thomas shifted its focus away from “pattern or practice” discrimination and allegations of discrimination based upon historical discrimination or statistical disparities to only cases of individuals experiencing intentional discrimination. Between 1980 and 1986, the number of cases settled by the EEOC decreased from 32.1% to 13.6% and cases found to have no cause increased from 28.5% to 56.6%.
Reagan also stacked the DOJ with conservatives. Notably, he appointed Linda Chavez as Staff Director of U.S. Commission on Civil Rights in 1983. Like Thomas, Chavez was committed to ending government intervention in issues of racial inequality. Her rhetoric explicitly disconnected the language of civil rights from the realities of structural racial inequality when she told the Washington Post in 1986, “many people confuse civil rights with social concerns—unemployment, poverty, housing, and other problems. Social problems and economic hardships have nothing to do with civil rights.” By the mid-1990s, Chavez was actively involved in anti-affirmative action work, and, in an essay about affirmative action, she claimed, “ultimately success depends on ability. No preference program can protect minorities from that fact forever. In the mean time, the beneficiaries of such programs are protected from having to learn the skills and habits they need to become truly successful.”
By decoupling the language of equality and civil rights from the social structural context within which it emerged, conservatives like Thomas and Chavez attacked affirmative action. They suggested that it was an unnecessary “preference program” that discriminated against Whites and contributed to a “culture of poverty” that crippled people of color. This, in turn, provided a language for attacks on affirmative action that was both palatable to Whites who did not want to be labeled racist and created the appearance that these conservatives were actually concerned about issues of civil rights. Organizations engaged in rolling back civil rights gains while appropriating the language of civil rights proliferated. Among the examples:
The Center for Individual Rights (CIR), created in 1989, led attacks on affirmative action in higher education through an aggressive litigation strategy. By researching admission policies at colleges and universities across the country and working to identify Whites denied admission as potential litigants (in one effort, in 1999, CIR placed ads in 15 university newspapers informing students that affirmative action policies may be violating the law, inviting students to contact them if they felt their rights were violated). CIR ultimately coordinated with the litigants who brought suit against the University of Michigan (discussed below).
The Institute For Justice, created in 1991 received its seed money from David Koch, a co-owner of Koch Industries, an infamous supporter of radical conservative attacks on civil rights. It has worked to assert parents’ rights to school-vouchers, which allowed the redirection of tax dollars from public education into private religious schools. With the Institute’s support, its co-founder Clint Bolick wrote The Affirmative Action Fraud, a book claiming that the Civil Rights Act of 1964 violated individual rights and property rights.
Beginning in the Reagan Era, wealthy White conservatives have been strategically positioned within the federal government by each Republican administration, and Democratic administrations have generally neglected to reverse the slant.
The Center for Equal Opportunity was created by Linda Chavez in 1994. It worked to identify government employment and education programs that were affirmatively considering race (in school bussing, voter districting, admissions, and affirmative action). Now run by Roger Clegg (previously a Reagan and Bush appointee), the Center worked with Ward Connerly on the Prop 209 effort in California (discussed below).
The American Civil Rights Institute was created in 1997 by Ward Connerly, a member of the California Board of Regents who had, in 1995, led a resolution by the UC system to end affirmative action in admissions and hiring. In 1996, Connerly brought forward a state-wide referendum called the “Civil Rights Initiative” (Prop 209) designed to stop the state from collecting data on or using any information on race, ethnicity, or national origin.
The Litigious Path to Irrelevance
Organizations like those discussed above, supported by incredible amounts of resources garnered from wealthy White conservative families and institutionally integrated with the federal Republican administrations, developed and implemented a litigation strategy to end affirmative action. They have succeeded in making affirmative action policies nearly irrelevant as a tool for racial equity in the U.S.
Today, affirmative action’s greatest power comes in its deployment as an extremely efficient rhetorical tool for mobilizing White resistance to racial equity, appropriating civil rights language to serve the goals of White supremacy.
In 1989, the case of Richmond v. J. A. Croson Co. (488 U.S. 469 [1989]) came before the Supreme Court. The case involved a set-aside program, modeled after Johnson’s federal program, whereby the city council of Richmond, Virginia set aside 30% of the city’s contracts to minority owned businesses (50% of the city’s population was African American and the city had a history of racial exclusion in the city works program). The Supreme Court held that state and local government agencies could not employ set-asides, noting that the 14th Amendment empowered the federal government to act to enforce the right to equal protection of the law, validating the federal 10% set-aside, but that state government was not so empowered. Six years later, in the 1995 case Adarand v. Pena (515 U.S. 200 [1995]), the federal public works funding set-aside was challenged with assistance from the Institute for Justice and the Court deployed the “diversity” rationale presented in the Bakke case to invalidate the federal set-asides as well. As it had in Bakke, the Court in Adarand said that the only government interest recognized as legitimately compelling to warrant intentional consideration of race in a remedial affirmative action plan was “diversity.” It went further, however, noting that that there was no need for diversity in construction or other federal public works projects; thus the set-aside violated the Constitution.
In spite of victories in effectively ending affirmative action in public employment and severely limiting the policies in higher education admissions, the anti-affirmative action contingency was not satisfied—in fact, they appeared to be emboldened. After Adarand, the CIR began to strategize another direct attack. They found their perfect case in the University of Michigan, where the undergraduate admissions procedure utilized a standardized system, giving points for various “diversity” factors including race (as well as growing up in rural Michigan, being a legacy, and other factors). Further, the Law School utilized a non-standardized “whole-person review” whereby race was considered alongside other factors by the admissions committee members. Because the University of Michigan’s Undergraduate and Law School admissions systems both used race-based affirmative action, but utilized different methods of considering race, CIR believed that challenging both practices could bring about an end to all forms of race-conscious affirmative action. CIR found Jennifer Gratz, a White applicant denied admission as an undergraduate, and Barbara Grutter, a White applicant denied admission to the Law School and, in 2003, the Supreme Court heard the cases of Gratz v. Bollinger (539 U.S. 234 [2003]) and Grutter v. Bollinger (539 U.S. 306 [2003]).
The Court’s decisions in both Gratz and Grutter relied heavily upon the racially decontextualized rhetoric of diversity in the Bakke case. Their conclusions reified Bakke and made implementing effective affirmative action policies even more difficult: the Court held that diversity in education is a compelling enough interest that some consideration of race might be used for affirmative action admissions policies, but that policies employing mechanical formulations like those in the undergraduate admissions at the University of Michigan were not permitted by the Constitution because they infringed upon the rights of “innocent Whites” (e.g., Gratz); however, considerations of race as a non-uniformly, whole-person review wherein race is considered as a “plus” factor were permissible (e.g., Grutter). Thus the Court affirmed the abstract liberalist framing of “diversity” as a basis for a very limited, amorphous affirmative action admissions policy.
Decades of attacks from a wealthy, conservative, anti-civil rights contingents, amalgamated with the direction of federal government agencies responsible for the enforcement (or non-enforcement) of civil rights and anti-discrimination law have led to an ineffectual affirmative action policy. Affirmative action is trotted out as a rhetorical tool to end conversations about racial inequality, generally in the form of the—“but what about affirmative action?”—question, but the empirical reality is that all U.S. institutions, in the arenas of education and employment, remain deeply racially stratified and unequal. The structural consequences of White supremacy remain intact, but the opponents of civil rights continue to fight. CIR and the Center for Equal Opportunity recently brought suit against the University of Texas in the name of White failed applicant Abigail Fisher, and while the case has been sent back to the district court level with instructions to use the standard of strict scrutiny (and the sole compelling government interest of diversity), it seems likely that similar cases will be heard by the Supreme Court again very soon, since the current Republican administration has so powerfully signaled its support for a deliberate and affirmative attack on these forms of racially remedial policies.
Something to Talk About
In the Grutter case, Justice Sandra Day O’Connor, who wrote the opinion, lamented that we still need to consider race in some instances because of racial inequality, but added that, perhaps in 25 years, we could do away with policies like affirmative action altogether. From a sociological perspective, this 25-year marker is absurd, the kind of legal gobbledygook frequently employed in Supreme Court jurisprudence, whereby Justices ignore relevant sociological, empirically supported evidence as they substitute arbitrary judicial opinions that are soon recognized as legal facts.
As a result of the nearly continuous assault on affirmative action policies since their inception, affirmative action has become a structurally irrelevant policy, creating opportunities for some individual people of color in a small minority of social institutions, but inadequate to create structural changes in racial hierarchy. Unfortunately, however, affirmative action has become a powerful rhetorical device, something for White conservatives to talk about to mobilize support for anti-civil rights activism and detract attention from patterns and mechanisms of White domination.
The U.S. remains deeply racially structured in all major social institutions and structures, from education and employment to criminal justice processes. Further-diluted affirmative action policies haven’t the remotest chance at achieving racial equity in any of these institutions. Prominent scholars have even suggested that if all racial discrimination ended immediately, it would take generations for the institutional and structural consequences of centuries of White supremacy to be reversed. And those calculations come before considering the ways that institutionalized prejudice and racist tropes affect the lived experiences and outcomes of people of color negotiating White institutions and organizations. Equity is simply not going to happen without some form of positive—affirmative—action.
The DOJ hiring memo released in August indicates that, just as has been the case for the vast majority of the post-civil rights era, political appointees in the current administration will become active participants in the project to continue to roll back the gains of the Civil Rights Movement and further quash the reach of affirmative action. When viewed in the context of this historical record, the move is a craven attempt to protect and preserve White structural privilege, power, and wealth.