Do We Still Need Affirmative Action?

What has become known as “affirmative action” is one of the more contentious aspects of our society.  In order to prevent discrimination in the future one must pass a law to prohibit it.  However, such a law then precludes providing any means for a minority that was harmed by discrimination to receive special treatment that would compensate for that prior experience.  Courts, schools, businesses, and politicians have tried to deal with this paradox for generations now.  Louis Menand provides an interesting discussion of this issue in an article for The New Yorker: The Changing Meaning of Affirmative Action (Integration by Parts in the paper version of the magazine).  Menand leans heavily on the book of Melvin I. Urofsky, The Affirmative Action Puzzle: A Living History from Reconstruction to Today, for information and data.

The term “affirmative action” was coined by Hobart Taylor Jr. in assisting the Kennedy administration in forming its Committee on Equal Employment Opportunity.

“Taylor needed a flexible phrase because Kennedy’s committee was a bureaucratic entity with a vague mandate meant to signal the Administration’s commitment to fairness in employment. Its purview, like the purview of committees dating back to the Administration of Franklin Roosevelt, was the awarding of federal contracts, and its mandate was to see that companies the federal government did business with did not discriminate on the basis of race. The committee had no real enforcement mechanism, though, so ‘affirmative action’ was intended to communicate to firms that needed to integrate their workforce something like ‘Don’t just stand there. Do something.’ What they were supposed to do, aside from not discriminating, was unspecified.”

“’Do something’ is still one of the meanings of ‘affirmative action’ today.”

The trick is to provide a distribution of societal benefits that more closely matches the demographic distribution without violating the civil rights laws and the Fourteenth Amendment.  The chosen means of accomplishing this is by identifying diversity as a social good.

“Many firms and educational institutions have affirmative-action or diversity officers. Their job is to insure not only that hiring and promotion are handled in a color-blind manner but that good-faith efforts are made to include racial minorities (and sometimes individuals in other categories, such as women or veterans or disabled persons) in the hiring pool, and, if they are qualified, to attempt to recruit them. In this context, ‘affirmative’ means: demonstrate that you did your best to find and promote members of underrepresented groups. You do not have to give them preferential treatment.”

Such an approach is subject to complaints about fairness and presents judges with difficult decisions.  The result is frequent relitigation and judicial rulings that leave many dissatisfied.  College admission has provided much of the judicial battling. The Bakke case is a good example of the issues that have arisen and the relevant legal findings.

“The Supreme Court case that admissions offices rely on today is Regents of the University of California v. Bakke. It was decided in 1978, and, despite several attempts to relitigate it, it is still the law of the land. Bakke is a good example of the jurisprudential confusion around affirmative action: the Court managed to produce six opinions in that case. The plurality opinion, by Lewis Powell, struck down an admissions program at the University of California at Davis School of Medicine, from which Allan Bakke, a white man, had been twice rejected, but it upheld the right of schools to use race-conscious admissions programs.”

UC Davis had used a separate admissions process to select minority applicants outside of the normal process.  There was a specified number of slots available for these applicants.  This specification was establishing a “quota” for minorities and judged to be clearly introducing a bias.  However, Powell called up the First Amendment as a means of providing the option for racial considerations.  Basically, UC Davis should have the right to determine the learning environment provided at the university, and if it decided a diverse student body produced an improved environment, they had the right to proceed accordingly.

“Powell argued, however, that another right was in play: the First Amendment; specifically, the right of academic freedom. There is no constitutional right of academic freedom, but Powell cited a 1957 case, Sweezy v. New Hampshire, in which Felix Frankfurter, in a concurring opinion, quoted South African jurists to the effect that the principle of academic freedom allows a university to determine who will teach its classes and who will sit in its classrooms.”

“Powell concluded that, since Davis could reasonably decide that a diverse class provides a better learning environment, considerations of an applicant’s race—as one factor among others—can fall within the exercise of a constitutionally protected right. (Under the Court’s ruling, Bakke was admitted to Davis and he became a doctor; Urofsky says that he went on to work at the Mayo Clinic, where one of his patients was Lewis Powell.)”

Given that background, there are two questions about affirmative action that need addressing: did it work (was it fair and successful), and is it still needed.  Urofsky provides the answer as to whether it worked.

“There is a whole library on racial inequality and efforts to address it, and “The Affirmative Action Puzzle” does not offer many novelties. But the book, just by the accumulation of sixty years’ worth of evidence, allows us to reach some useful conclusions, and the most important of these is that affirmative action worked. The federal government, with the backing of the courts, weaponized the 1964 Civil Rights Act and its legislative progeny—notably the Education Amendments of 1972, home to the notorious (in the R.B.G. sense) Title IX, banning sex discrimination in federally assisted educational institutions—and forced businesses to hire women and racial minorities.”

“And they did. Study after study suggests that it is just not the case that ‘it would have happened anyway.’ In 1981, for example, as Urofsky tells us, the Reagan Labor Department commissioned a report on gains in hiring among African-Americans and women. It found that between 1974 and 1980 the rate of minority employment in businesses that contracted with the federal government, and were therefore susceptible to being squeezed, rose by twenty per cent, and the rate of employment of women rose by 15.2 per cent. In companies that did not contract with the government, the rates were twelve per cent and 2.2 per cent, respectively.”

“This was so contrary to everything that Reagan had been saying about affirmative action that the Labor Department hired an outside consulting firm to vet its own report. When the firm returned with the news that the methods and the conclusions were valid, the Administration did the only thing it could do. It refused to release the report, thus allowing politicians to go on telling the public that affirmative action didn’t work.”

Menand then produced this surprising declaration.

“…the biggest defenders of affirmative action are not the N.A.A.C.P. and the Democratic National Committee. The biggest defenders are corporations and the military.”

By not having a diverse set of employees to deal with a diverse marketplace, a business can place itself at a disadvantage with respect to minority customers.  A white-male hiring policy would eliminate about two-thirds of the population as potential employees.  That makes no sense talentwise.  The nation cannot have a stable, dependable military force heavy in minority enlisted soldiers if it is led by a white-male officer corps.  In 2003, another admissions case involving the University of Michigan reached the Supreme Court.

“The extent of the corporate buy-in was put on dramatic display in 2003, when the Supreme Court heard Grutter v. Bollinger, another admissions case, this one involving the University of Michigan Law School. The Court received sixty-nine amicus briefs (a lot) arguing in favor of Michigan’s affirmative-action admissions program, and among the amici were General Motors, Dow Chemical, and Intel, along with the largest federation of unions in the United States, the A.F.L.-C.I.O. They supported affirmative-action admissions because they wanted universities to produce educated people for a diversified workforce.”

“The Court also received, in Grutter, what became known as ‘the military brief.’ This was an amicus brief signed by big-name generals like Norman Schwarzkopf, Wesley Clark, and John Shalikashvili; by a former Defense Secretary, William Cohen; and by former superintendents of the service academies, all of which, of course, are government agencies. ‘At present,’ they told the Court, ‘the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC use limited race-conscious recruiting and admissions policies.’ They were saying that if the Court ruled against Michigan it would be upending efforts, up to that point highly successful, to maintain a diverse officer corps.”

Affirmative action produced benefits to the recipients, to schools, to businesses, and to the military, but was it fair in the sense that worthy people were excluded from an opportunity they deserved?  It should be recognized that in school admissions, the number of lesser qualified whites who were admitted in place of the litigant arguing against affirmative action was probably much larger than the number of minority applicants in question.

Menand provides this perspective.

“Did white men suffer as a result of affirmative action? That turns out to be a difficult question to answer. ‘There is very little hard evidence to prove that a minority hire almost always took place at the expense of a better-qualified white person,’ Urofsky says. He also tells us that there are ‘no reliable data’ on whether men were shut out of jobs that were offered to women.”

“Urofsky’s view is that, over all, white men did not go without jobs or the chance to attend college. Turned down by one place, they went someplace else. The number who were ‘victimized’ by affirmative action, he says, is ‘minuscule.’ Certainly this is true in the case of college admissions. Most colleges accept almost everyone who applies, so when we talk about race-conscious admissions we are talking about policies that affect a relatively small number of people. Urofsky borrows from Thomas Kane, of the Brookings Institution, an analogy to handicapped parking spaces: a driver looking to park who does not have a permit might feel ‘excluded’ driving past an empty handicapped spot, but he or she usually finds a place to park.”

Finally, is affirmative action still needed?  The process involves all groups who might be discriminated against, but it was put in place in an attempt to ameliorate the centuries of harm done to black people by slavery, Jim Crow, and institutionalized racial bias.  Numerous inequalities continue to exist indicating that blacks are still a heavily disadvantaged minority.  There is much work yet to be done.

The Grutter admissions case, even with all the support for affirmative action coming from so many directions, was decided by a 5-4 vote.  The Court is becoming increasingly more conservative and has shown the willingness to eliminate long-standing protections using the argument that they are no longer needed, as with voting rights protections in Shelby v. Holder.  Menand fears that such a future awaits affirmative action.

“The Court’s decision in Shelby v. Holder vacating a central provision of the Voting Rights Act has backfired. It turns out that, when you remove enforcement mechanisms and remedial oversight, things tend to revert to the status quo ante.”

“The whole history of affirmative action shows, as Urofsky somewhat reluctantly admits, that when the programs are shut down minority representation drops. Diversity, however we define it, is politically constructed and politically maintained. It doesn’t just happen. It’s a choice we make as a society.”