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Juan Williams -- Affirmative Action Died Too Soon

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That is just one aspect of the racial unfairness that brought together an all-white Senate with the Rev. Martin Luther King Jr. and Malcolm X to support a Civil Rights Act aimed at ending discrimination. Presidents across political lines, beginning with Lyndon Johnson and Richard Nixon, also embraced the idea. The Civil Rights Act led Justice Thurgood Marshall and Justice William Brennan to argue that the Constitution's equal rights protections had not stopped pernicious job discrimination and therefore should not be used to stop efforts to redress the damage done by outright racism.

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In the 1989 case of City of Richmond v. J.A. Croson Co., the Supreme Court cut that back by ruling that affirmative action is a "highly suspect tool," adding that any use of it had to be preceded by "strict scrutiny" -- putting minorities in the position of having to prove past discrimination. And now, with the Ricci case, the Supreme Court has reduced affirmative action to virtually nothing.

Public-sector employers, such as elected officials in New Haven -- where 60 percent of residents are minorities but the leadership of the fire department remains heavily white -- may still feel political pressure to bring more people of color into their workforces, and may explore tests that seek to produce more equitable racial outcomes for jobs and promotions. But even then, any loser may sue.

Corporations, meanwhile, are unlikely to go that far. Why bother to spend money and time to develop such tests absent any political pressure to diversify the workforce? As the director of the National Federation of Independent Business told the Wall Street Journal, the Ricci ruling was good news for business because it insulates employers from suits brought by minorities negatively affected by a new hiring test.

After the Ricci ruling, President Obama said that any hiring or school admissions practices based solely on race are unconstitutional, and he condemned the use of quotas. In an interview with the Associated Press, the nation's first black president stressed that the Supreme Court did not completely "close the door" on affirmative action, if properly structured and in certain circumstances, but he conceded that the court had moved "the ball" away from such efforts. Obama also asserted that affirmative action "hasn't been as potent a force for racial progress as advocates would claim," and as consolation, he offered that the best form of affirmative action is a good education for all Americans.

Essentially, Obama delivered a eulogy for affirmative action.

Of course, efforts to breathe some life into affirmative action may continue here and there. New blood on the high court, in the form of current nominee Sonia Sotomayor and future possible additions to the liberal wing, may change some rulings. Sotomayor, a self-described product of affirmative action in school admissions, said at her hearings that "equality requires effort" and that recognition of race and history is necessary to ensure equal rights in some cases. She may be right, but for now she does not have the votes with her, and the tide of time and politics has moved the other way.

The bold national experiment that came to life 45 years ago with the equal employment section of the Civil Rights Act is now over -- even if discrimination is not.

It is time to think about how to deal with racial inequity without affirmative action.

Juan Williams, a news analyst for NPR and political commentator for Fox News, is the author of "Enough: The Phony Leaders, Dead-End Movements, and Culture of Failure That Are Undermining Black America -- and What We Can Do About It."


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