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Constitutional Opinions
Affirmative Action Reconsidered
New legal cases and initiatives confirm renewed popular opposition to race as an organizing principle in American society.
When President John F. Kennedy included a call for “affirmative action” as part of an executive order he issued in 1961, the phrase was widely viewed as a proactive extension of the civil rights movement. The idea was to adopt corrective measures that would reverse discriminatory practices and for employers to open up new opportunities to minorities who had been denied equal treatment. However, for Americans living in the 21st century, the concept of affirmative action in employment, college admissions, and government contracting has conflicting connotations.
For some, the term is synonymous with the use of racial quotas, set-asides, and other preferential policies at odds with constitutional rights. For others, affirmative action continues to register as a benign, anti-discriminatory policy measure aimed at compensating minority groups for past injustices and safeguarding hard fought gains.
But the existing legal regime that sorts out individual Americans on the basis of race is no longer tenable in a society that has become more multi-ethnic at the turn of the century, Roger Clegg, the president and general counsel of the Center for Equal Opportunity (CEO), told listeners during a recent Federalist Society luncheon in New Orleans. In fact, in some parts of the country, it is no longer clear which group is actually in the minority, Clegg noted in his talk. Moreover, many individual Americans check off more than one box when asked about their ethnicity in census samples, he points out.
But there is another option gaining momentum at the state level that appeals to long-standing constitutional ideals. In defiance of academic elites, far-left pressure groups and establishment figures in both major political parties, average Americans are voting down race and gender preferences as a matter of government policy; and they are doing so by sizable majorities. The demographic shift that has become evident in recent years is at least partly responsible for the public’s heightened opposition toward preferential policies, Clegg suggested.
“There is a form of affirmative action that is not controversial, that no one is trying to abolish,” he said. “It does not violate the original meaning of the phrase. The idea was that companies that may have had a history of discrimination could not just sign a piece of paper and pretend that it wasn’t a problem anymore. Instead, they had to take proactive measures.”
But affirmative action does become controversial, Clegg added, when it is attached to policies that treat people differently based on their ethnicity or gender. This approach, which is still operative in many government agencies and academic institutions, no longer sits well with a growing majority of Americans.
Up next for voter approval, is the Oklahoma Civil Rights Initiative (OCRI), which will be on the state ballot in November. The proposal would amend the state constitution with language prohibiting government-sanctioned discrimination.
State Sen. Robert Johnson, the prime sponsor of the resolution to put the civil rights initiative on the ballot, has invoked language reminiscent of Martin Luther King Jr. to make his case.
“I have always believed we should be evaluated by our character and merit, not by the color of our skin,” he has observed. “Equality of the law is a fundamental American value. This proposal would give Oklahoma voters the opportunity to reaffirm the importance of that value in state government.”
The proposed amendment declares: “The state shall not grant preferential treatment to, or discriminate against, any individual or group on the basis of race, color sex, ethnicity or national origin in the operation of public employment, public education or public contracting.” The Oklahoma initiative is closely patterned after California’s Proposition 209, which passed with 54 percent of the vote in 1996.
While the language is as clear and unambiguous as the public sentiment behind it, the mixed messages of the U.S. Supreme Court have created an uncertain legal environment that allows for continued judicial mischief at the lower level. Writing for the majority in the 2003 Grutter v. Bollinger opinion, Justice Sandra Day O’Connor ruled that it was permissible for the University of Michigan Law School to use race as one of many factors in a “narrowly tailored” fashion to achieve student diversity. But in the concurrent Gratz v. Bollinger ruling, the majority of justices rejected the point system used at the University of Michigan undergraduate school. When the two rulings are blended together, it is evident that the high court is opposed to the use of overt quotas and set-asides.
Left-leaning political figures who are working to overturn or block the civil rights initiatives typically aim their arrow through the Grutter ruling. Gov. Jerry Brown of California filed an amicus brief last year backing up the latest legal challenge to Proposition 209 that is now before the 9th Circuit Court of Appeals. But just a few months later, Brown also saw fit to veto legislation that would have reinstated race and gender preferences. Even as he attempts to placate his far left base, Brown recognizes that he faces an uphill climb in the court system.
Ward Connerly, the former University of California regent who was the galvanizing influence behind the civil rights initiative, had threatened to take legal action if Brown signed off on the bill. Moreover, the 9th Circuit and the California Supreme Court have already upheld the constitutionality of Proposition 209.
“By Any Means Necessary”
The key instigator behind the continued legal challenges to Connerly’s initiatives is a highly aggressive pressure group known in full as the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), which came together in response to Proposition 209. Shanta Driver, a 1975 Harvard graduate with a J.D. from Wayne State University Law School, founded the organization in 1995. BAMN claims it is out to “restore the real meaning” of the 14th Amendment’s equal protection clause.
About the Author
Kevin Mooney is an investigative reporter with free market think tanks associated with the Franklin Center for Government and Public Integrity. He has also written for the Daily Caller, the Washington Times, the Washington Examiner, NetRightDaily.com and NewsBusters.
Letter to the Editor View all comments (26) | Leave a comment
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Richard Baker| 1.25.12 @ 6:45AM
Affirmative action, racial quotas, or any other such contrivance debilitates the recipient and cheapens the achievment. Don't think so? Read Mr. Justice Thompson's book about what value his Yale Law degree has to him as a result.
Bill Hussein O'Stalin| 1.25.12 @ 6:52AM
Schools around the country are afraid of disciplining black males and with good reason. The number crunchers are out there.
Recently, The Washington Post did a series of articles about how black male students were suspended at rates 7 times higher than white male students.
Solution? Maryland now proposed to do away with all suspensions claiming they don't work. What Maryland really wants to do is make schools a dangerous place.
You can bet that for every suspension of a black student, they were probably warned about a hundred times. School administrators are deathly afraid of racial math and the consequences associated with suspending black students.
The bottom line is that if the no suspension rule goes into effect in Maryland and your kids are white, you better find an alternative.
L. Ross| 1.25.12 @ 8:30AM
My neighbor and lifting partner, who is black, wouldn't dream of sending his kids to public schools in Maryland either. Sad.
Frank Drackman | 1.25.12 @ 9:35AM
Counting Med School, I've spent some 21 years in Americas' Pubic Education System.
Which is why I still have trouble with "There" and "Their", and don't even get me started with Homo-nyms, you Homos...
But thanks to some substitute math teacher I can't even remember except he had a Fro' that would have made Angela Davis(wiki that S***)Proud..
I can predict the day of the week a future date, any date in the future will fall on.
Came in handy for Med School, back in the days before Ipads, y'see we had to make follow up appointments for the Poor Peoples with no Health Insurance who somehow managed to get Aortic Aneurysms repaired, Brain Tumors Resected, and if they were lucky enough to see me, Free Vasectomies...
January 20th, 2013?
Its a Sunday, so I guess the Muslim-in-Chief (Peas be upon Him)will get sworn in on the Monday, wait, thats MLK day...
Frank
jaytrain| 1.25.12 @ 9:50AM
Dr King's thoughts on this subject are as powerfully persuasive today as they were fifty years ago . But on a practical level , the best argument against affirmative action we have is Mr Obama . A man who can tick as many preference boxes as he can and yet he can do no better than the rumoured B+ averege he took from a sinkhole of liberal guilt ie Columbia . And that was done in the most soft of the available majors. This is a fellow who is either very lazy or not very bright , or both .Building on that , he manages to edit his law review without the burden of actually writing an article for that once esteemed rag . And now a nation suffers under the weight of man hoisted several levels above his abilities by playing on liberal guilt masquerading as affirmative action
Al Adab| 1.25.12 @ 10:51AM
Affirmative action is the ultimate hypocricy. It belies everything racial equality supposedly means. It makes some more equal than others on the basis of race which should be anthema to us all.
Bulbul| 1.25.12 @ 10:57AM
Those are freebies, given away by liberals, to their loyal constituents: Blacks and Hispanics, yet minority still live under poverty, commit most of the crimes, and remain uneducated and unemployed.
fmm| 1.25.12 @ 11:57AM
Think of Affirmative Action as a cover for the murder of mostly blacks from liberal championed abortion. Liberals excel at misdirection.
All American American| 1.25.12 @ 11:27AM
If affirmative action is good for education and hiring in the private sector, why not institute it in professional sports leagues? African-Americans are WAAAAAAAAY over-represented in the NBA and NFL.
An easy way to do this is at the college socuting combine just give the white players advantages. For instance instead of running a FORTY yard dash they get to run a THIRTY-FIVE yard dash. Stuff like that to even the playing field and such. I mean, it seems to me the 40-yard standard is a tool of the black oppressors in an effort to keep the white athelete down. Its past time to demand equality of outcome for aspiring white NFL and NBAers everywhere!!!!!
The NBA can institute the 8-foot rim for white players, and heck maybe even make it a little wider too and make the ball smaller.
Heck this is fun! In MLB white pitchers should pitch to black and hispanic players from 50 feet instead of 60'6". When black or hispanic pitchers face white hitters, the mound should be moved back to 75'.
Affirmative action for EVERY under-represented ethnic group, everywhere!
Either that or we just hire based on merit, but who in their right mind would want THAT?!?!?!?!?!?
Moe Blotz| 1.25.12 @ 12:54PM
The best solution would be to allow white athletes to use Flubber, both solid state and gas.
Bulbul| 1.25.12 @ 11:55AM
Those Blacks love money and sex. Those Hispanics love freebies and children. They do not want education or jobs, they favor big government and welfare.
cowgirl| 1.25.12 @ 12:43PM
The President of the United States benefitted tremendously from Affirmative Action. Both in academics and politics.
I rest my case.
Bulbul| 1.25.12 @ 3:27PM
I'm sorry but Obama never graduated from any University.
cowgirl| 1.26.12 @ 11:15AM
I am sorry but you are wrong:
After high school, Obama studied at Occidental College in Los Angeles for two years. He then transferred to Columbia University in New York, graduating in 1983 with a degree in political science.
Obama entered Harvard Law School in 1988. In February 1990, he was elected the first African–American editor of the Harvard Law Review. Obama graduated magna cum laude in 1991.
katherinec| 10.5.12 @ 6:35AM
Prove it. I am one of the 310 million Americans who have NOT seen Obama's applications to college or law school, have NOT seen Obama's transcripts at college or law school, and have NOT seen his diplomas from college or law school. Without proper documentation, he might as well have not done anything for those years except snort coke, smoke dope, and ride on the Affirmative Action train.
PolishKnight| 1.25.12 @ 1:58PM
I like the phrasing JFK used: "reversing discriminatory policies" when, in reality, it was about engaging in discriminatory policies IN REVERSE. In addition, with modern "diversity" and preferences for women, the rationaliztion of "getting even" doesn't even work: Women got all those comfy lifeboat seats so where's "men and children" first preferences there? And the millions of non-white immigrants requesting preferential treatment have never suffered at the hands of the American companies and government that's granting them such preferences.
It was race hustling from the beginning. MLK and JFK are the most overrated figures in history.
Al Adab| 1.25.12 @ 2:57PM
Although PK, it is fun to upset the "civil rights establishment" and the Left by quoting MLK and JFK. Drives them crazy.
Bulbul| 1.25.12 @ 3:27PM
ABOLISH THE AFFIRMATIVE ACTION!
shock nagasaki| 1.25.12 @ 4:04PM
Why is it that most writers do not discuss women when writing about affirmative action? Most, if not all, AA policies and quota systems require preferential treatment for women, as well. Are we scared to confront that elephant in the room, too? Is our society so politically correct that women are untouchables again?
Oldefarte| 1.25.12 @ 4:23PM
Racial preferences are DISCRIMINATORY, period. The Brown vs Bd. of Ed case of 1954 did away with 'seperate but equal' schools, and ever since all students of whatever race have the SAME schools, buildings, textbooks, computers, documentary materials, teachers, etc [and therefore the same OPPORTUNITIES]. What liberals want and demand is EQUAL RESULTS, ie an unlevel playing field. Apparently that is what Obama wants also!!!!!!!!!
Betina| 1.25.12 @ 10:36PM
Affirmative action has mutated into "multiculturalism" and "diversity. It's not even remotely associated with correction of historical misdeeds against American blacks. Now it includes letting every and any minority stomp on the straight white Christian man and get to the head of the line. So if if Juan swims the Rio and drags his arse to safety and then sends for Maria and the seven children to arrive under cover of darkness, he can be here two weeks and suddenly he's "special". He gets preferential treatment over the whitey. Last I heard we weren't shackling Mexicans down South, were we? Or how about Indians, Asians, Africans, Muslims, or any other third world left wing candidate for sainthood. Affirmative action in this day and age is a big fat phony and in all its disguises and transformations it's still blatant racial profiling and discrimination. The biggest bigots are the ones with the biggest demands. It has become the political answer to greed and envy for losers.
Leveut| 1.25.12 @ 10:55PM
It is worth mentioning that the opposition to Cal Prop 209 and Michigan civil rights initiative is extremely bizarre.
To see why, compare and contrast those two propositions with the Civil Rights Act of 1964.
Brian| 1.26.12 @ 2:37AM
We still have affirmative action because most ppl are completly un-aware its effected them. The government does not send you a "Dear whitey" letter.
Mark in LA| 1.26.12 @ 4:20PM
It's too bad we had a brain dead imbecile in the White House from 1981-1989 when affirmative action and political correctness could have been killed before it got ridiculous. Inseat we got a guy who expanded it, amnestied illegals, and gave "disadvantaged" status to Hassidic Jews and East Indians in government contracting.
Marc Jeric| 1.26.12 @ 5:22PM
These are the modern tools of communist take-over of our institutions: affirmative action, multiculturalism, inclusiveness, diversity, women's rights, equal pay for "equal" work, gay rights,... all the tools to supress the individual merit.
Thorvald| 1.28.12 @ 8:13AM
Perhaps the boldest remedy after 50 years of affirmative action would be to prohibit any level of government from even knowing ones race. Let's make Dr. King's dream come true. (Note that ones sex will still need to be recorded at birth for purposes of licensing marriages, and for keeping the Navy SEALS strong.)