II.  Affirmative Action Defined

III.  The Continued Need for Affirmative Action

IV.  Final Commentary

The cover of the November 1996 issue of Emerge Magazine depicts Supreme Court Justice Clarence Thomas as the "Lawn jockey for the far right." The cover of the of the March 1998 issue of the same magazine depicts ultra-conservative California businessman Ward Connerly as a puppet tied to the "Money strings of California proposition 209⁽¹⁾." The question then becomes: What do these two men have in common? Answer: They both represent the new face and a new strategy for conservative opposition against affirmative action. 
 

What's new about the face of the opposition is easy to see: Two successful black men implying the road to success is paved by "merit," not with "quotas" and "set asides." They both speak carefully chosen terms with which to refer to affirmative action. What is not as easily seen is the repackaging of the strategy. Ostensibly, what could be more credible than an affirmative action attack led by two prominent potential black beneficiaries, one a Supreme Court Justice responsible for creating and implementing laws, and the other nearly single handedly responsible for lobbying millions of dollars for support of the Prop 209?⁽²⁾ With such poised opposition, why don't the rest of us "po" lazy black folk simply get a grip, stop blaming "Mr. Charlie" for our failures, and pursue Dr. King's dream of color blindness instead of pushing for color preferences? This paper answers this question. Before proceeding, its important to preface the response with this quote: …and there is no new thing under the sun (Ecclesiastes 1:9). To fully respond, three fundamental questions must be answered. First, what is affirmative action? Secondly, why was it needed? Finally, does that need remain?

II. Affirmative Action Defined

Historically, affirmative action-like programs emerged from the need to provide reparations to slaves newly freed as a result of the Emancipation Proclamation of 1862.⁽³⁾ The first initiative was the formation of the Freedmen's Bureau, which confiscated the land of confederate soldiers and leased it to the freed slaves.⁽⁴⁾ Eventually, with the bitter opposition to continued legislative support, the belief by President Andrew Johnson the all of the slave's problems had been solved, and fear that these measures would harm whites, the bureau became insolvent.⁽⁵⁾ However, a few years later, the Fourteenth Amendment was ratified, with the equal protection clause being created to guarantee the freed slaves equal treatment under the law. Unfortunately, in 1896 the Supreme Court interpreted the equal protection clause in Plessy v. Ferguson in a way that created the familiar tenant of Jim Crow: Separate but equal.⁽⁶⁾ This result was especially tragic for two reasons. First, not only did it codify the disparate treatment of blacks, but the "separate but equal" doctrine further crystallized the badge of inferiority which blacks inherited from the denigration of slavery. The separate but equal doctrine was finally outlawed in Brown v. Board of Education where the Court held, in part, that "separate" was inherently "unequal" and the doctrine had an injurious impact on the self-esteem of young black children.⁽⁷⁾
 

The spirit of Brown was not fully implemented until passage of the 1964 Civil Rights Act. Title VII of the Act prohibits employment discrimination by the U.S. government on the basis of race, gender, religion etc., while section 1981 institutes similar provisions at the state level.⁽⁸⁾ This mix of case-law and statutes, generally interpreted as affirmative action, was implemented in the form of quotas, preferences, goals/timetables, outreach/counseling, and anti-discrimination action.⁽⁹⁾ Quotas establish "absolute floors or/and ceilings" on the number of women and minorities selected.⁽¹⁰⁾ Preferences merely permit the use of race, gender, or ethnicity to counter the effects of discrimination.⁽¹¹⁾ Goals and timetables are established in conjunction with studies that highlight disparate selection practices.⁽¹²⁾ Outreach and counseling are used to increase the size of the selection pool for women and minorities.⁽¹³⁾ Finally, anti-discrimination policies entail programs such as "diversity training and anti-harassment training."⁽¹⁴⁾
 

The first real test of affirmative action came in under the Supreme Court in 1978, Regents of the University of California v. Bakke.(holding in part that quotas could not be used as part of the admissions criteria for a state medical school but that race could be one of many factors considered) ⁽¹⁵⁾ The next Supreme court trial came in 1989 in Crawson v. City of Richmond.⁽¹⁶⁾ The Crawson Court stipulated that affirmative action programs must past the same constitutional test as cases of invidious discrimination. That is, the program will only be allowed if necessary to serve a compelling government interest.⁽¹⁷⁾
 

What does all this mean? First, quotas are virtually dead.⁽¹⁸⁾ Secondly, affirmative action is only allowed where necessary to serve a compelling government. The net result: Affirmative action is allowed where it satisfies these two conditions.⁽¹⁹⁾ This represents a crude summary of affirmative action law. However, now that affirmative action has been defined and the legal foundation is established, does the need remain? 

The two most commonly cited reasons for the continued need of affirmative action are the need to counteract the effects of present racial discrimination and to provide reparations for the lingering effects of past discrimination.⁽²⁰⁾ In fact, the voice of the "new" black conservatives commonly cites the amelioration of racism and lack of identifiable wrongs as reason to terminate affirmative action without prejudice. 

The reality of racism

As explored through review of the affirmative action laws, racial discrimination is illegal. However, "it cannot be assumed that a legislature can 'fix' social prejudices, rather social equality must be obtained through the voluntary consent of individuals."⁽²¹⁾ The reality is that racism is alive and well and in fact exists in both conscious and subconscious forms. 

Conscious Racism

Conscious racism is also referred to as "overt" racism. Jim Crow segregation was overt racism. The Ku Klux Klan exhibits overt racism. Lynchings were expressions of overt racism. However, though blacks and other racial minorities may be less likely to be called a racial epithet in 1998, race continues to play a dramatic role in our society. Race influences the way we interact with each other and influences our expectations of one another. A recent experiment revealed that when black and white college students were given the same resume and sent to the same employers during the study, the only difference being race; that whites received job offers 41% more than blacks and were offered wages 17% higher.⁽²²⁾ Dr. Michael Dyson, in his book Race Rules, suggests that the recent O.J. Simpson murder trial may represent the most telling effects of racism in American culture. 

In relation to the O.J. Simpson trial, Race determined which jurors to select. Race governed the decision to bring black attorney, Christopher Darden, onto the prosecution team. Race influenced the prosecution's decision to present Mark Furman as a witness though they knew he was a bigot.⁽²³⁾ And most of all, race influenced the divergent reactions, between blacks and whites, to the verdict. This opening chapter in Dr. Dyson's book examines the irony in the acquittal of police officers seen on video brutally beating Rodney King.⁽²⁴⁾ Police brutality and harassment were not strangers to the black community though redress was uncommon. However, in the case of Rodney King, there was irrefutable, incontrovertible evidence that the entire world saw and yet it was still explained away and his police attackers acquitted.⁽²⁵⁾ When it came to O.J., for most blacks and some whites, the sloppy collection of evidence, compelling testimony of defense expert witnesses, and unexplained appearances of blood and gloves equated to reasonable doubt. When blacks viewed the evidence, they saw it through the eyes of their collective experiences. For once the system worked the way it was supposed to. However, from the perspectives of most whites, many of the traditional racist stereotypes were at play: The mandate of a conviction when a black man is accused of murdering a white, the lack of intelligence of the mostly black jurors, and the ignorance of blacks that applauded the verdict. Most blacks felt vindication, not because someone who had potentially murdered two people was acquitted simply because he was black, but because it appeared the system had worked the way it was supposed to. Mr. Simpson could not be proven guilty "beyond a reasonable doubt."⁽²⁶⁾

To the same extent that most black people, and some whites were pleased, most whites, and some blacks were outraged. For the first time, most whites were able to see "the gulf between legality and morality, which is the same thing that blacks have been protesting for years with virtually no support from whites." Given the foregoing "RACE does MATTER." Furthermore, It's necessarily true that since skin color continues to matter, race must play a role in the solutions to the problems it has created. 

Unconscious Racism.

Unconscious racism effects our involuntary reactions and provoking subconscious responses that are triggered by deeply embedded stereotypes. We all are victims. When I was a young child, it was reflex to refer to someone as an "Indian giver" whenever they gave you something and then quickly took it away. It didn't dawn on me how racially offense this embedded belief was until I was older and a white friend, after inviting me to his home for dinner, offered the additional enticement of telling me that his wife had just bought a fresh watermelon. It was his personal experience that blacks necessarily liked watermelon. Many of us believe that all Asians are practitioners of martial arts or good in math. Similarly, the traditional, unconscious stereotypes of blacks may suggest sexual promiscuity or laziness. 

It's impossible for us to know the ways that our personal experiences have influenced our beliefs and perspectives about race or may unknowingly govern our actions.⁽²⁷⁾ Therefore, even what we may perceive as the most innocuous behavior on our part could be an unconscious reaction to some deeply embedded racial stereotype.⁽²⁸⁾ Two theories explain the nature of unconscious discriminatory beliefs. First, the Freudian theory which states that unconscious repression is a defense mechanism for the discomfort of guilt. Secondly, the theory of cognitive psychology suggests that the human mind absorbs its own belief systems from the environment, authority figures, peers, and parents etc., and unconsciously orders our perceptions of the world.⁽²⁹⁾

There are many considerations to unconscious racism. First, why should we recognize unconscious racism in interpreting and applying affirmative action laws? Next how do we interpret unconscious racism and apply it in specific cases. Third, if we cannot make unconscious racism actionable, is there a "neutral principle" to apply to political, admissions, or hiring decisions?⁽³⁰⁾ To really drive home the point, there are many examples of unconscious racism in everyday life in which the actors are unaware of their actions.⁽³¹⁾ In other cases, the actor is perfectly aware of his actions, but doesn't have a clue that these actions are born of injurious racial stereotypes. Examples include reference by sports broadcasters to black athletes as "little monkeys," Nancy Reagan's appearance before a public gathering during her husband's presidential campaign, and making the statement that she wished he could be there "to see all these beautiful white people." The real problem is that some whites, for example, are only exposed to blacks through mass media roles as criminals, musician or comedians.⁽³²⁾ However, there is no way to tell when these stereotypes influence a hiring decision where a white candidate may be seen as "more intelligent" or "more collegial." That is, the interviewer is unaware his decision was influenced by unconscious racism.⁽³³⁾

It has long sense been noted by black professionals that, for example, when it comes to competence on the job there are different burdens of proof between whites and blacks. The notion is that if you're white, it's ordinarily assumed you can do the work and that you're presumed competent until proven otherwise. However, if you're black, no matter what the nature of the profession, you're generally presumed to be incompetent until proven otherwise. 

Lingering effects of past discrimination

Whether openly acknowledged or not, compensation for past wrongs is a mandatory element of any affirmative action remedy.⁽³⁴⁾ First, the history of the association of the European Americans with the Native Americans and with the institution of slavery, is violent. America was born out of violent colonization where land was outright taken from indigenous peoples, slavery was the law of the land. Though institutional slavery was abolished over a hundred years ago, it lingering effects continue. The issue is that harms inflicted upon blacks, and other people of color, have a cumulative effect and are passed on from generation to generation in much the same way that wealth and racial privilege is perpetuated within families. ⁽³⁵⁾

Consider the following hypothetical scene which entails the following exchange. "A white assistant city attorney takes the court elevator up to the ninth floor. At the fifth floor, the doors open. A black woman asks: 'Going down?' 'Up,' says [the city attorney]. And then, as the doors close: 'You see? They can't even tell up from down. I'm sorry, but it's true." While the black woman's question could have been interpreted several different ways, the city attorney chose to view the woman through a traditional stereotype that suggests blacks have an inferior intellect.⁽³⁶⁾ Other suggestions from this stereotype imply that blacks are lazy, boisterous, occupationally unstable, ignorant, superstitious etc. It's not suggested that this interpretation of the elevator event was intentional on the part of the City attorney. But what is suggested is that these types of unconscious stereotypes, or microaggressions, color the perceptions of black people by white people at every level of the human experience. 

This type of "color caste system" mentality relates to an 1858 U.S. treatise stating in part:

"...[the Negro] exhibits such a weakness of intellect… so debased is their [moral] condition generally, that their humanity has been even doubted, …Lust is his strongest passion; and hence, rape is an offence of too frequent occurrence…" 

At the outset, comments were made regarding the new alliance of Clarence Thomas and Ward Connerly. It's suggested that the decision by the conservative power elite is an old one indeed. The theme is: Whenever the need exists to generate opposition to ANY program, conservative whites have always presented black faces. Consider the attempt of conservative presidential candidate George Bush, to generate opposition to a weekend prison release program by painting it with the black face of Willie Horton. Consider the dialogue surrounding welfare. Its common knowledge that there are many more whites on welfare than blacks. However, whenever the inequities of welfare are openly lamented, the program is always associated with black women and kids--suggesting that the cause of the problems with welfare are "black women." Similarly, who better to lead the charge against affirmative action than black faces that are actually saying "the problems created by affirmative action are due to untoward black folk."
 

Cornel West critiques this dichotomy quite eloquently in his book entitled Race Matters. For the most part, variations of three basic arguments are waged by black conservatives against black liberal thought primarily in exchange for acceptance and sponsorship of their white colleagues. First, the contention is made that most blacks have the "victim mentality" and blame their personal failures on white racism.⁽³⁸⁾ Next, most blacks are "pathologically" bound to blackness and "dysfunctional aspects of black behavior" which forces them to champion the notion that blacks can do no wrong. Finally, the black conservatives charge that black liberals shun open and honest discussion on the real problems in the black community with a fear of "airing dirty laundry."⁽³⁹⁾ According to these conservatives, the problem is that advancement is dependent solely merit, personal responsibility and race does not matter. However, Cornell West points out the irony in their contentions. "Black conservatives voiced these feelings in the form of attacks on affirmative action programs despite the fact that most of them obtained their status by way of the same programs."⁽⁴⁰⁾ He carefully points out that black conservatives are quick to chime that they simply desire to be judged by merit not race but they ignore the fact that affirmative action directly resulted from the refusal of whites to view black folk in this manner. Pure "merit" according to Mr. West, is a fiction, especially in hiring. That is, it's common knowledge that hiring decisions consider merit, but also consider personal attributes. Therefore, affirmative action type programs simply balance the scales and influence whether personal attributes such as race will be used against minorities or in their favor. In the final analysis, race still matters and affirmative action is still needed!

¹ Proposition 209 is California initiative designed to eliminate affirmative action in state hiring, contracts and the admissions policies of public colleges and universities, Emerge Magazine, 30, March 1998 

2. 

² Ward Connerly is the founder or the Sacramento based American Civil Rights Institute which is not only sponsoring prop 209 in California, but attempting to establish similar provisions in 23 other states. Prop 209 has been successful in part because its sponsors have used the language of Dr. Martin Luther King regarding character, in lieu of color, to dismantle affirmative action. Ironically, prop 209 is called a civil rights initiative. Connerly's group alone raised more than twice the amount of all the affirmative action support groups combined. More than 50% of the contributions came from single contributions of $10,000 and up. 

3. 

³ Amy L. Knickmeier, Blind Leading the "colorblind:" The Evisceration of Affirmative Action and a Dream Still Deferred, 17 N. Ill. U. L. Rev. 305, 308 (1997) 

4. 

⁴ Id. 

5. 

⁵ Id. at 309 

6. 

⁶ Plessy v. Ferguson, 163 U.S. 537 (1896) 

7. 

⁷ Brown v. Board of Education, 347 U.S. 483 (1954)

8. 

⁸ 42 U.S.C. §§ 2000e to 2000e-17, 42 U.S.C. § 1981 

9. 

⁹ Vernellia R. Randall, Affirmative Action Homepage, http://www.udayton.edu/~race/affirm.htm 

10. 

¹⁰ Id. 

11. 

¹¹ Id. 

12. 

¹² Id. 

13. 

¹³ Id. 

14. 

¹⁴ Id. 

15. 

¹⁵ Regents of the University of California v. Bakke, 438 U.S. 265 (1978) 

16. 

¹⁶ J.A. Crawson v. City of Richond, 488 U.S. 469 (1989) 

17. 

¹⁷ Id. 

18. 

¹⁸ Erwin Chemerinsky, Symposium on Race Relations in America: What Would Be the Impact of Eliminating Affirmative Action?, 27 Golden Gate University Law Review, 313 (1997) 

19. 

¹⁹ Id. 

20. 

²⁰ Fran Ansley, Affirmative Action: Diversity of Opinions: Classifying Race, Racializing Class, 68 U. Colo. L. Rev. 1001, 1014 

21. 

²¹ Amy L. Knickmeier, 17 N. Ill. U. L. Rev. at 310 (quoting Plessy v. Ferguson, 163 U.S. at 551) 

22. 

²² Erwin Chemerinsky, 27 Golden Gate U.L. Rev. at 315 

23. 

²³ Dr. Michael Dyson, Race Rules, 43 

24. 

²⁴ Id at 38 

25. 

²⁵ Id. 

26. 

²⁶ Id at 32 

27. 

²⁷ Charles R. Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 322 

28. 

²⁸ Id. 

29. 

²⁹ Id. at 323 

30. 

³⁰ Id. at 337 

31. 

³¹ Id. at 339 

32. 

³² Id. at 343 

33. 

³³ Id. 

34. 

³⁴ Fran Ansley, 68 U. Colo. L. Rev. at 1014 

35. 

³⁵ Id at 1016 

36. 

³⁶ Peggy C. Davis, Symposium: Popular Legal Culture: Law As Microagression, 98 Yale Law Journal, 1559, 1561 (1989) 

37. 

³⁷ Id. at 1566 

38. 

³⁸ Cornell West, Race Matters, 75, 1993 

39. 

³⁹ Id. 

40. 

⁴Id. at 78