Affirmative Action's Untimely Obituary
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.