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Affirmative Action's Untimely Obituary

By Juan Williams
Sunday, July 26, 2009

Affirmative action, age 45, is dead.

In 2003, after the Supreme Court limited race to one of many factors that could be considered in school admissions, Justice Sandra Day O'Connor predicted that affirmative action, born with the Civil Rights Act of 1964, had at most 25 more years to live. She was too optimistic.

The court's recent 5 to 4 decision in Ricci v. DeStefano -- concluding that the city of New Haven, Conn., violated the rights of white firefighters when it threw out a promotions test because no blacks had passed it -- cut the last legal underpinnings for affirmative action. Without protection from reverse-discrimination lawsuits, virtually every instance of affirmative action can now be forever tied in a legal tangle that chokes the life out of it.

It is a death that has come too early, as even the nation's latest unemployment numbers show. African Americans have close to double the joblessness of whites, while the unemployment rate among Latinos is a third higher than that of whites. In a nation that is rapidly becoming more racially diverse, these are destabilizing disparities in power and class. In the professional world, blacks and Hispanics make up a mere 4 percent to 6 percent of the nation's lawyers, doctors and engineers. These gaps are exacerbated by differences in education and income and, more important, by the history of government-enforced segregation that long denied African Americans entry into schools and the business world.

So, why now? More often than not, it is the American left that gets lost in absurd fantasies about race in this country. They pretend there has been no progress in recent decades, even when they see the rise of a black middle class and witness the election of a mixed-race president and the likely confirmation of a Hispanic woman to the Supreme Court. But today, it is the right wing and its supporters on the high court who are making stuff up. They pretend that the nation is already so transformed that a colorblind America is a reality and that affirmative action is superfluous, so much so that white employees in a city fire department -- an arena long dominated by Irish and Italian Americans -- need help from the Supreme Court to get a promotion.

This is a stark reversal of the Supreme Court's position in 1979, when it upheld a company hiring policy of "one black for one white" in United Steelworkers v. Weber. The Equal Employment Opportunity Commission then protected businesses from lawsuits from white employees if a company acted on an approved plan to reverse the exclusion of people of color in hiring or promotions.

The Ricci decision blows apart that framework. Justice Ruth Bader Ginsburg was on target when she said the ruling did "untold" damage to civil rights laws intended to rectify past wrongs.

Justice Antonin Scalia exemplified the new thinking, writing in his opinion that a "war" is coming between individual rights in the Constitution and the Civil Rights Act's protections against standards or hiring tests that have a specific effect on protected minorities. "The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how -- and on what terms -- to make peace between them," Scalia wrote.

But the war is over before it began. Employers, whether in government or in the private sector, now have every incentive to avoid affirmative action fights. Left in place is a status quo that favors the white majority, especially white males, who profited most from the exclusion of racial minorities for all but the most recent American history.

The only way to make sense of what seems so farcical is to conclude that the court is focused on the idealism of individual rights in a nation whose demographics are a potentially combustible mix. There are many more immigrants -- and children of immigrants -- while white birth rates are declining, so people of color already make up a third of the U.S. population. In a more racially and ethnically diverse America, every person (including whites) can be subjected to unfair racial judgments by employers.

And it makes sense, up to a point, to debate ending remedies for discrimination that are more appropriate to mid-20th century America, in which nearly 90 percent of the population was white and racism kept blacks, Latinos and Jews from advancing in the workplace.

When the Civil Rights Act passed in 1964, the intent of its employment provisions -- Title VII -- was to protect obvious victims, i.e., blacks, Hispanics and Asians who were being injured by discrimination in hiring, promotion and pay. (White women were not included until several years later.) Affirmative action was put in place under Title VII to help qualified minorities find their way through old-boys' networks and negative stereotypes that had the effect of putting a "Whites Only" sign on company doors.

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.

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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