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‘Reverse Discrimination’ Is a Concept With a Long, Ugly History

This being affirmative action week at the US Supreme Court, talk of “reverse discrimination” is in the air. I think it’s time to find another form of words.

Don’t get me wrong. Though I favor affirmative action, my problem isn’t with people who disagree. I’m troubled by the phrase itself. And it’s not being used only by critics of the way colleges conduct their admissions programs. In late October, a panel of the US Court of Appeals for the 7th Circuit used it in ruling for a White employee who alleged that he’d been fired unjustly. A quick look at the case, together with an assessment of history, will show why the term “reverse discrimination” should be abandoned.

The facts were hardly the stuff of which news is made. The plaintiff, a meter reader for Springfield, Illinois, had been discharged for misconduct. He alleged that his firing was discriminatory because a Black meter reader had behaved worse and been retained. The district court dismissed the action, reasoning that because the two employees had committed different offenses, they weren’t “similarly situated” as the law requires.

By a vote of 2-1, the court of appeals reversed. Writing for the majority, Judge Candace Jackson-Akiwumi noted that because this was a “reverse discrimination case” the plaintiff only had to produce evidence “that the employer has reason or inclination to discriminate invidiously against whites or evidence that there is something ‘fishy’ about the facts at hand.” 

If “fishiness” seems a murky test, that’s not the judge’s fault. This “background circumstances” test has been widely followed since first laid down by another federal appellate court in 1981 as a way to deal with bias claims by White (or male) employees. Some critics find it vague; others think it unfair. My concern is that in their constant invocation of “reverse discrimination,” the precedents are unhappily worded. That term and the concept behind it share a history sufficiently odious that I’d advise critics of affirmative action to find a different form of words. Because there’s been scarcely a moment of progress toward racial equality that hasn’t met the same criticism.

We can trace similar language at least back to 1854, when a North Carolina newspaper registered its dismay at the contents of an abolitionist pamphlet: “[T]here seems to be a prejudice against a white skin, and in favor of black one, that would be amusing if it were not disgusting.” In 1866, during the Reconstruction Era, newspapers across the country reprinted an anonymous essay condemning the Freedmen’s Bureau for “discrimination against the white race.”

The examples go on. When Congress appropriated $200,000 for “an exhibit by the colored people of the United States” at the 1893 Columbian Exposition, the St. Louis Post-Dispatch condemned the vote as “a clear violation of the civil rights bill as a discrimination against white people on account of their color.”

Ten years later, papers chastised President Theodore Roosevelt for publicly trumpeting the large number of Black appointments he’d made. It was one thing, a Missouri editor wrote, to say that color should not be taken into account when hiring. But the president’s evident pride in his record results suggested a policy of “discrimination against white men.”

During the 1920s, after Clarence Darrow advised a Black audience to form a voting bloc to gain more influence, a Michigan newspaper wrote that the famous lawyer “exhibited in numerous ways that most degenerate form of race prejudice — prejudice against the white race that bore him.”

Skip forward to World War II. At a 1944 Senate hearing, Democrat Richard B. Russell of Georgia observed that in the higher-paid positions at the federal Fair Employment Practices Committee “a majority of the employees are colored” and asked a witness, “Don’t you think that is discriminating against the whites?”

Then as now, the “less qualified” label was always lurking — and was particularly likely to be raised when jobs were at stake. At the 1947 convention of the Brotherhood of Railway Trainmen, a committee report lamented the growing “exclusion of white firemen” caused by the hiring of “Negro firemen [who] do not contribute to the maintenance of working conditions and rates of pay as secured by white firemen.”

As to the precise term “reverse discrimination,” by the 1940s it had become commonplace. In 1945, for instance, when civil rights leaders pointed out that the Congress of Industrial Organizations had chosen an all-White delegation for an international labor conference, they were accused of advocating “discrimination in reverse.” In 1956, Connecticut’s commissioner of education used the words to caution against the potential effects on White applicants of a proposal “favoring the hiring of teachers from minority groups.”

In 1951, the syndicated columnist Drew Pearson charged “reverse discrimination” after a Senate subcommittee that had rejected a White nominee for a United Nations post voted in favor of a Black one. Concluded Pearson: “Sometimes it pays to be a member of a minority group.”

Again, though I support affirmative action, I accept that people of goodwill can disagree on how to weigh the great principles at stake. But in the course of a continuing public argument that I hope will prove both courteous and thoughtful, perhaps we can bury the phrase “reverse discrimination” once and for all.

More From Bloomberg Opinion:

• Supreme Court Will End the Era of College Diversity: Noah Feldman

• Supreme Court Should Just End College Affirmative Action: Ramesh Ponnuru

• Supreme Court Will Make It Harder to Hire a Diverse Team: Noah Feldman

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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